MEMORANDUM DECISION
                                                                   Jun 11 2015, 9:47 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Michael Nance                                             Gregory F. Zoeller
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Graham T. Youngs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Nance,                                            June 11, 2015

Appellant,                                                Court of Appeals Cause No.
                                                          46A04-1409-MI-460
        v.                                                Appeal from the LaPorte Circuit
                                                          Court
                                                          46C01-1409-MI-1654
Ron Neal,
Appellee.                                                 The Honorable Thomas Alevizos,
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A04-1409-MI-460 | June 11, 2015       Page 1 of 5
                                             Case Summary
[1]   Michael Nance appeals the trial court’s denial of his petition for writ of habeas

      corpus. We affirm.


                                                     Issue
[2]   Nance raises one issue, which we restate as whether the trial court properly

      denied his petition for a writ of habeas corpus.


                                                     Facts
[3]   In 1999, Nance was charged with murder and was found guilty. The trial court

      sentenced him to sixty years in the Department of Correction. We affirmed

      Nance’s conviction and sentence on direct appeal. Nance v. State, 49A05-0109-

      CR-402 (Ind. Ct. App. July 24, 2002). Nance filed a petition for post-

      conviction relief, which the post-conviction court denied. On appeal, we

      affirmed the denial of the petition for post-conviction relief. Nance v. State,

      49A05-0311-PC-597 (Ind. Ct. App. Sept. 7, 2004), trans. denied.


[4]   In September 2014, Nance filed a petition for writ of habeas corpus in the

      LaPorte Circuit Court. Nance alleged that his Fifth Amendment rights were

      violated because he was not indicted by a grand jury. The LaPorte Circuit

      Court transferred Nance’s petition to Marion County pursuant to Indiana Post-

      Conviction Rule 1(1)(c) because Nance was “attack[ing] the validity of his




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      conviction and/or sentencing.” 1 App. p. 4. Despite the earlier transfer, the

      LaPorte Circuit Court then denied Nance’s petition as follows:

                 Petitioner has alleged that he is entitled to immediate release because
                 he was not charged by a grand jury. However, the laws of the State of
                 Indiana provide for charging by grand jury or by information.
                 Notwithstanding Petitioner’s claim, nothing in the Indiana or United
                 States Constitution prohibits this practice. Therefore Petitioner’s
                 Petition must be denied.
      App. p. 3. On September 22, 2014, the Marion County Superior Court also

      denied Nance’s petition for writ of habeas corpus. Nance does not appeal the

      Marion County order; rather Nance now appeals the LaPorte Circuit Court’s

      order. 2


                                                       Analysis
[5]   Nance argues that the trial court erred by denying his petition for writ of habeas

      corpus. The purpose of a writ of habeas corpus is to determine the lawfulness

      of custody or detention of the defendant and may not be used to determine

      collateral matters not affecting the custody process. Hardley v. State, 893 N.E.2d

      740, 742 (Ind. Ct. App. 2008). A defendant is entitled to a writ of habeas

      corpus if he is unlawfully incarcerated and is entitled to immediate release. Id.

      We review the trial court’s habeas decision for an abuse of discretion. Id.




      1
          This order does not appear on the CCS.
      2
          Nance did not reference the Marion County order until his reply brief.


      Court of Appeals of Indiana | Memorandum Decision 46A04-1409-MI-460 | June 11, 2015   Page 3 of 5
      Without reweighing the evidence, we consider only that evidence most

      favorable to the judgment and reasonable inferences drawn therefrom. Id.


[6]   A petitioner may not file a writ of habeas corpus to attack his conviction or

      sentence. Martin v. State, 901 N.E.2d 645, 647 (Ind. Ct. App. 2009). A

      petitioner attacking the validity of his conviction must file a petition for post-

      conviction relief in the court of conviction rather than a petition for a writ of

      habeas corpus in the court in the county of incarceration. See Hardley, 893

      N.E.2d at 743. In general, “if a petitioner erroneously captions his action as

      petition for a writ of habeas corpus rather than post-conviction relief, courts will

      frequently and properly treat the petition as one for post-conviction relief, based

      on the content of the petition, rather than the caption.” Id.; see also Ind. Post–

      Conviction Rule 1(1)(c) (“if a person applies for a writ of habeas corpus in the

      county where the person is incarcerated and challenges the validity of his . . .

      sentence, that court shall transfer the cause to the court in which the conviction

      took place, and the latter court shall treat it as a petition for relief under this

      Rule.”).


[7]   On appeal, Nance argues that his conviction violates the United States

      Constitution because he was not indicted by a grand jury. Nance made the

      same argument in his petition for writ of habeas corpus, and the argument is an

      attack on the validity of his conviction. Consequently, Nance should have

      presented these arguments in a petition for post-conviction relief. However,

      Nance previously filed a petition for post-conviction relief, which was

      unsuccessful. Under Post–Conviction Rule 1(12), a petitioner must file, with

      Court of Appeals of Indiana | Memorandum Decision 46A04-1409-MI-460 | June 11, 2015   Page 4 of 5
       the Clerk of the Indiana Supreme Court and Indiana Court of Appeals, a

       petition seeking permission to file a successive post-conviction petition as well

       as a proposed successive petition for post-conviction relief. See P-C.R. l(12)(a).

       If a petitioner establishes a “reasonable possibility that [he] is entitled to post-

       conviction relief,” this Court will authorize the filing of the successive post-

       conviction petition, which is then filed in the court where the petitioner’s first

       post-conviction relief petition was adjudicated. P-C.R. 1(12)(b), (c).


[8]    Nance was required to request permission to file a second, or successive,

       petition for post-conviction relief, but he did not follow the proper procedure for

       filing a successive petition. Although the trial court denied the petition on a

       different basis, we conclude that the trial court did not err by denying Nance’s

       petition for writ of habeas corpus.


                                                 Conclusion
[9]    The trial court properly denied Nance’s petition for writ of habeas corpus. We

       affirm.


[10]   Affirmed.


[11]   Riley, J., and Bailey, J., concur.




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