MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                               Sep 07 2016, 5:52 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Aaron E. Isby                                            Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Aaron Isby a/k/a Aaron Israel,                           September 7, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         77A05-1601-MI-233
        v.                                               Appeal from the Sullivan Circuit
                                                         Court
Richard Brown in his capacity as                         The Honorable Lakshmi Reddy,
Warden of Wabash Valley                                  Special Judge
Correctional Facility,                                   Trial Court Cause No.
Appellee-Respondent.                                     77C01-1411-MI-673




Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 1 of 7
[1]   In 1988, Appellant-Petitioner Aaron Isby began serving a thirty-year sentence

      for robbery. In 1992, Isby was sentenced to forty years imprisonment for an

      attempted murder committed while he was incarcerated. The sentencing court

      ordered Isby to serve the attempted murder sentence consecutive to his prior

      sentence for robbery. In 2008, Isby completed his thirty-year robbery sentence.

      In 2010, Isby filed a complaint against the commissioner of the Indiana

      Department of Correction (“DOC”) which was treated as a petition for writ of

      habeas corpus. Isby’s petition was denied by the trial court and that decision

      was affirmed by this court on appeal. In 2014, Isby filed a second habeas

      petition which the trial court denied. We affirm the trial court’s denial of Isby’s

      petition.



                            Facts and Procedural History
[2]   On September 27, 2010, Isby filed a petition for writ of habeas corpus which

      was ultimately denied by this court on appeal. Isby v. Lemmon, No. 77A01-

      1504-PL-132 (Ind. Ct. App. 2015). As we outlined in Lemmon, Isby’s

      underlying convictions can be summarized as follows:

              Isby’s record of convictions, sentences, and pro se petitions
              makes outlining his status something of a challenge, but rather
              than elaborate on his seven convictions and a contempt sentence,
              we think the crucial timelines are these: (1) a thirty-year sentence
              for class A robbery, imposed in 1988, from which he was
              released in 2008; (2) a ninety-day sentence for contempt of court,
              which he began serving after finishing his sentence for robbery;
              and (3) a forty-year sentence for an attempted murder he


      Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 2 of 7
                 committed while in prison[1], a sentence that began to run in 2009
                 after he finished his sentence for contempt.
                 In 2010, Isby filed a complaint for declaratory and injunctive
                 relief, contending that he was entitled to immediate release. The
                 case was transferred to Sullivan County, where Isby is presently
                 confined. After an appeal which produced a change of judge,
                 Special Judge Christopher Newton granted the State’s motion for
                 summary judgment.


      Id. at slip op. 1.


[3]   In Lemmon, Isby argued that the was entitled to immediate release because a

      2008 letter from the parole board indicated that he should be released to parole

      in 2009 after serving his sentence for robbery. In other words, Isby would have

      been paroled on his original robbery sentence in 2009 if not for his forty-year

      sentence for attempted murder. This court addressed Isby’s argument as

      follows:


                 The Parole Board’s letter to Isby was correct, as far as it went. In
                 early 2009, Isby completed the executed portion of his robbery
                 sentence and the ninety days he owed on the contempt. The
                 Board’s letter made no mention of the fact that Isby was to begin
                 serving his sentence for attempting to murder a prison guard after
                 these two obligations ran their course. It may be that Isby’s letter
                 to the Board did not mention his sentence for attempted murder,
                 just as he has argued here that it was improper for Judge Newton
                 to take cognizance of that conviction in deciding that Isby was
                 not entitled to an order releasing him from prison. Or, it may be
                 that the Board responded to Aaron Isby thinking that he and



      1
          In October of 1990, while incarcerated, Isby stabbed a correctional officer in the neck with a knife.


      Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016                Page 3 of 7
              Aaron Israel were two different people, as appellant has used
              both names.
              In any event, the forty-year conviction and sentence for
              attempted murder appear not actually to be under attack. There
              are no disputes of material fact, and the trial court properly
              granted judgment to the State.


      Id. at slip op. 2.


[4]   The instant appeal concerns a second habeas petition filed by Isby on

      November 25, 2014. In this petition, Isby again argued that the parole board

      letter entitled him to release in 2009. Isby also argues that his sentence for

      attempted murder should have run concurrent to his sentence for robbery. On

      January 5, 2016, the trial court denied Isby’s petition finding that his claims

      were barred by the doctrine of res judicata and that his sentences were properly

      run consecutively.



                                 Discussion and Decision
[5]   On appeal, Isby reiterates his argument that the parole board letter entitles him

      to release and argues that his sentence for attempted murder should have run

      concurrent to his sentence for robbery.


      I. Whether Isby’s Claim is Barred by the Doctrine of Res
                             Judicata
[6]   “The doctrine of res judicata bars litigating a claim after a final judgment has

      been rendered in a prior action involving the same claim between the same


      Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 4 of 7
      parties or their privies. The principle behind the doctrine is the prevention of

      repetitive litigation of the same dispute.” Love v. State, 22 N.E.3d 663, 664 (Ind.

      Ct. App. 2014) (quotations omitted), trans. denied. Isby argues that the doctrine

      of res judicata should not apply here for two reasons: (1) the doctrine cannot be

      applied to habeas corpus cases, and (2) the respondent in this case is different

      than in his previous habeas petition.


[7]   As for his first argument, Isby is incorrect in his belief that the doctrine of res

      judicata cannot be applied to habeas cases. The Indiana Supreme Court has

      held as follows on this issue:

              The general common-law rule as to the rule of res judicata in
              proceedings for writ of habeas corpus is that a decision under one
              writ of habeas corpus, refusing to discharge a prisoner, is not a
              bar to the issuance of another writ. This was the early common-
              law rule and the federal courts, as well as many state courts, have
              generally accepted or given effect to this rule where not changed
              by statutory enactment. However, it has been repeatedly held
              that where a second or subsequent application is based on the
              same, or not materially different, facts, a prior refusal to
              discharge may constitute authority for refusal on subsequent
              applications.
                                                      ***
              It is obvious that no useful purpose would be served by trying
              over and over again in habeas corpus proceedings the same
              questions which were fully considered and determined in the
              original proceedings.




      Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 5 of 7
      Shoemaker v. Dowd, 232 Ind. 602, 606-607, 115 N.E.2d 443, 446 (1953); see also

      Adams v. Eads, 255 Ind. 690, 692, 266 N.E.2d 610, 611 (1971); Love, 22 N.E.3d

      at 664.


[8]   With regards to his second argument, Isby claims that the named parties are

      different in his two habeas petitions. In Lemmon, Isby named the

      Commissioner of the DOC as a defendant, whereas here he brought his claim

      against the Superintendent of the Wabash Valley Correctional Facility. Both of

      these individuals were sued in there capacity as State actors whose function it is

      to maintain Isby’s incarceration. Therefore, there is no meaningful difference

      between these two parties for the purposes of Isby’s habeas petitions and,

      likewise, the application of the doctrine of res judicata. Accordingly, we decline

      to address any of Isby’s contentions which were raised in his previous petition

      for habeas corpus including his claim regarding the parole board’s letter.


         II. Whether the Sentencing Court Erred in Running
      Isby’s Sentence for Attempted Murder Consecutive to his
                           Prior Sentences
[9]   Isby claims that his sentence for attempted murder should have begun running

      as soon as it was imposed. For its part, the State claims that the sentence

      properly began running as soon as Isby finished serving his prior sentence for

      robbery. Initially, we note that by challenging the imposition of consecutive

      sentences, Isby is essentially attempting to convert his habeas petition into a

      petition for post-conviction relief, which he is not permitted to do. See Sumbry

      v. Misc. Docket Sheet for Year 2003, 811 N.E.2d 457, 460 (Ind. Ct. App. 2004) (“a
      Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 6 of 7
       person may not petition a court for writ of habeas corpus to attack his

       conviction or sentence.”). Nevertheless, we will address why there was no error

       in running Isby’s sentences consecutively.


[10]   Indiana Code section 35-50-1-2(e) provides that “If, after being arrested for one

       (1) crime, a person commits another crime [] before the date the person is

       discharged from probation, parole, or a term of imprisonment imposed for the

       first crime…the terms of imprisonment for the crimes shall be served

       consecutively.” Pursuant to this statute, Isby was properly ordered to serve his

       attempted murder sentence consecutive to his prior sentences. As such, Isby

       did not begin serving his forty-year attempted murder sentence until 2009. The

       trial court did not err in denying Isby’s petition for writ of habeas corpus.


[11]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 77A05-1601-MI-233 | September 7, 2016   Page 7 of 7
