                                                                                            FILED
                                                                                        Mar 10 2017, 9:10 am

                                                                                            CLERK
                                                                                        Indiana Supreme Court
                                                                                           Court of Appeals
                                                                                             and Tax Court




      APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
      James E. Manley                                           Curtis T. Hill, Jr.
      New Castle, Indiana                                       Attorney General of Indiana
                                                                Aaron T. Craft
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James E. Manley,                                          March 10, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                33A05-1608-MI-1865
              v.                                                Appeal from the Henry Circuit
                                                                Court
      Keith Butts,                                              The Honorable Kit C. Dean Crane,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                33C02-1604-MI-37



      Pyle, Judge.


                                        Statement of the Case
[1]   James E. Manley (“Manley”), pro se, appeals the Henry Circuit Court’s order

      dismissing his petition for writ of state habeas corpus as an unauthorized

      successive petition for post-conviction relief. Manley contends that his petition


      Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017                   Page 1 of 9
      was not an unauthorized successive petition for post-conviction relief and that,

      even if it were, the Henry Circuit Court should have transferred it to his court of

      conviction in Monroe County. Because Manley’s habeas petition is challenging

      the validity of his convictions and sentence and because Indiana Post-

      Conviction Rule 1(1)(c) requires that, under such circumstances, a trial court is

      required to transfer the petition to the court where the petitioner was convicted,

      we reverse the Henry Circuit Court’s dismissal of Manley’s petition and instruct

      the trial court to transfer the petition to Manley’s conviction court, the Monroe

      Circuit Court, where it shall be treated as a post-conviction petition.1


[2]   We reverse and remand with instructions.


                                                        Issue
              Whether the trial court erred by dismissing Manley’s state habeas
              corpus petition as an unauthorized successive petition for post-
              conviction relief.

                                                       Facts
[3]   In 1997, Manley was convicted, in Monroe County, of two counts of Class A

      felony child molesting and two counts of Class B felony child molesting for acts

      committed against his daughter. The Monroe Circuit Court sentenced Manley




      1
       Upon receiving Manley’s habeas corpus petition and treating it as a post-conviction petition, Manley’s
      conviction court, the Monroe Circuit Court, may apply Post-Conviction Rule 1(12), which governs
      successive petitions for post-conviction relief.

      Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017                        Page 2 of 9
      to an aggregate term of fifty-five (55) years in the Indiana Department of

      Correction.


[4]   Thereafter, Manley filed a direct appeal, and this Court affirmed his convictions

      in a memorandum opinion in 1999. See Manley v. State, 53A04-9806-CR-333

      (Ind. Ct. App. Feb. 18. 1999). He then appealed from the denial of his petition

      for post-conviction relief in 2001, and we affirmed that judgment as well. See

      Manley v. State, 53A01-0103-PC-107 (Ind. Ct. App. Aug. 28, 2001) (holding, in

      part, that Manley had waived his constitutional challenges to the child

      molesting statute because he had failed to raise the issue in a motion to dismiss

      prior to trial).


[5]   In 2004 and again in 2006, Manley filed, with this Court, petitions seeking

      permission to file a successive post-conviction petition, and our Court denied

      both of his requests. In 2007, he appealed the trial court’s denial of his motion

      to modify his sentence, and we affirmed the trial court’s judgment. See Manley

      v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007), trans. denied.


[6]   A few years later, in 2014, Manley appealed from the denial of a motion for

      relief from judgment that he had filed in the Monroe Circuit Court. After

      noting that Manley had already litigated a petition for post-conviction relief,

      that he had failed to follow the procedure set forth in Indiana Post-Conviction

      Rule 1(12), and that his motion equated to an unauthorized successive petition

      for post-conviction relief, we dismissed his appeal. See Manley v. State, No.

      53A01-1407-CR-317 (Ind. Ct. App. Apr. 14, 2015), trans. denied, cert. dismissed.


      Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017   Page 3 of 9
[7]    Subsequently, in December 2015, Manley filed, with this Court, a petition

       seeking permission to file a successive post-conviction petition. Our Court

       denied his request in February 2016.


[8]    Thereafter, on April 11, 2016, Manley filed a pro se petition for writ of state

       habeas corpus in Henry Circuit Court, which is the county where he is

       incarcerated. In his petition, he argued, in part, that the child molesting statute

       was unconstitutional, that he did not have a fair and impartial judge or

       appellate tribunal, and that he was “erroneously sentenced[.]” (App. 9). In his

       memorandum attached to his habeas petition, Manley acknowledged that he

       had already had a post-conviction proceeding. Additionally, shortly after he

       filed his habeas petition, Manley sent a letter to the Henry Circuit Court. In his

       letter, Manley stated that the Henry Circuit Court could not transfer his motion

       to the Monroe Circuit Court under Post-Conviction Rule 1 because the Court of

       Appeals had already declined to authorize him to file a successive petition for

       post-conviction relief in February 2016.


[9]    On May 20, 2016, the Henry Circuit Court directed the trial clerk to forward a

       copy of Manley’s petition to the Indiana Attorney General’s Office (“the

       Attorney General”) and instructed the Attorney General to file a response

       within thirty days.


[10]   When the Attorney General filed its response, it requested that the Henry

       Circuit Court dismiss Manley’s petition, arguing that it was an unauthorized

       collateral attack on his convictions and sentence. The Attorney General


       Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017   Page 4 of 9
       acknowledged that, under Post-Conviction Rule 1(1)(c), Manley’s habeas

       petition challenging his convictions and sentence should be transferred to the

       conviction court and treated as a petition for post-conviction relief. The

       Attorney General also acknowledged that, upon such a transfer, the conviction

       court could dismiss Manley’s petition because he did not have permission to file

       a successive post-conviction petition pursuant to Post-Conviction Rule 1(12).

       Nevertheless, the Attorney General argued that—given Manley’s prior post-

       conviction petition and the repeated lack of authorization from the Court of

       Appeals to file a successive post-conviction petition—the Henry Circuit Court

       should dismiss Manley’s petition because it was an unauthorized successive

       petition for post-conviction relief. In other words, the Attorney General argued

       that the Henry Circuit Court should disregard Post-Conviction Rule 1(1)(c)

       because “[t]ransferring the case would merely waste resources.” (App. 32).


[11]   On June 20, 2016, the Henry Circuit Court entered an order dismissing

       Manley’s petition, concluding that the petition equated to an unauthorized

       successive petition for post-conviction relief.2 Manley then filed a motion to

       correct error, which the Henry Circuit Court denied. Manley now appeals.




       2
         As a secondary reason for dismissal, the Henry Circuit Court stated that the case was dismissed for lack of
       jurisdiction because it “lacked the jurisdiction to review the judgment of another trial court[.]” (App. 5).

       Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017                          Page 5 of 9
                                                    Decision
[12]   Manley contends that the Henry Circuit Court erred by dismissing his petition

       for writ of state habeas corpus. Specifically, he contends that his petition was

       not an unauthorized successive petition for post-conviction relief.

       Alternatively, he asserts that, even if it were an unauthorized successive

       petition, the Henry Circuit Court should have transferred it to his court of

       conviction, the Monroe Circuit Court.


[13]   INDIANA CODE § 34-25.5-1-1 provides that “[e]very person whose liberty is

       restrained, under any pretense whatever, may prosecute a writ of habeas corpus

       to inquire into the cause of the restraint, and shall be delivered from the

       restraint if the restraint is illegal.” “The purpose of the writ of habeas corpus is

       to bring the person in custody before the court for inquiry into the cause of

       restraint.” Partlow v. Superintendent, Miami Correctional Facility, 756 N.E.2d 978,

       980 (Ind. Ct. App. 2001), superseded by statute on other grounds as stated in Paul v.

       State, 888 N.E.2d 818 (Ind. Ct. App. 2008), trans. denied. “One is entitled to

       habeas corpus only if he is entitled to his immediate release from unlawful

       custody.” Id. (quoting Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496,

       498 (1978)). “[A] petitioner may not file a writ of habeas corpus to attack his

       conviction or sentence.” Id. We review the trial court’s habeas decision for an

       abuse of discretion. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008).


[14]   Here, it is apparent from Manley’s habeas petition, that he is challenging the

       validity of his convictions and sentence. However, “a petitioner may not file a


       Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017     Page 6 of 9
       writ of habeas corpus to attack his conviction or sentence.” Partlow, 756

       N.E.2d at 980. Instead, a petitioner attacking the validity of his conviction or

       sentence must file a petition for post-conviction relief in the court of conviction

       and not in the court of incarceration. Id.


[15]   However, where, as here, a petitioner files a habeas corpus petition challenging

       the validity of his conviction or sentence in the county of incarceration, Indiana

       Post-Conviction Rule 1(1)(c) provides that such habeas corpus petition is to be

       transferred to the court of conviction and then treated as a petition for post-

       conviction relief. Specifically, Indiana Post-Conviction Rule 1(1)(c) provides as

       follows:

               This Rule does not suspend the writ of habeas corpus, but if a
               person applies for a writ of habeas corpus in the county where
               the person is incarcerated and challenges the validity of his
               conviction or 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.

       (Emphasis added).


[16]   Thus, pursuant to Post-Conviction Rule 1(1)(c), the Henry Circuit Court was

       required to transfer Manley’s petition to the conviction court, the Monroe

       Circuit Court. See, e.g., Miller v. Lowrance, 629 N.E.2d 846, 847 (Ind. 1994)

       (explaining that a petitioner’s habeas corpus petition challenging the validity of

       his conviction and sentence fell within the parameters of Post-Conviction Rule

       1(1)(c), which required the trial court to transfer the petition to court where he

       was convicted and sentenced), reh’g denied; Martin v. State, 901 N.E.2d 645, 647

       Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017    Page 7 of 9
       (Ind. Ct. App. 2009) (holding that the petitioner’s habeas corpus petition that

       challenged his convictions and sentence was required to be transferred to the

       court where he was convicted and sentenced). See also Lash v. Wright, 287

       N.E.2d 255, 258 (Ind. Ct. App. 1972) (explaining that transfer of a habeas

       petition under Post-Conviction Rule 1(1)(c) was “mandatory” and was to be

       done “without delay”).


[17]   The State acknowledges that Post-Conviction Rule 1(1)(c) “requires a

       mislabeled habeas petition to be transferred to the court of conviction[.]”

       (State’s Br. 17). Nevertheless, the State contends that there is, in essence, an

       exception to Rule 1(1)(c) and that “transfer is required only when the petition is

       properly ‘a petition for relief under’ Post-Conviction Rule 1.” (State’s Br. 17).

       It asserts that Manley’s petition—which was an unauthorized successive

       petition for post-conviction relief—was “by definition not ‘a petition for relief

       under’ Post-Conviction Rule 1” and, as a result, the Henry Circuit Court was

       not required to transfer the petition to the conviction court. (State’s Br. 17).


[18]   It seems that the State is putting the cart before the horse. The plain language

       of Post-Conviction Rule 1(1)(c) rule provides that a trial court, upon receiving a

       habeas petition challenging a conviction or sentence, “shall transfer the cause to

       the court in which the conviction took place[.]” P-C.R. 1(1)(c). Thereafter,

       when the conviction court receives the petition, that court “shall treat it as a

       petition for relief under [Post-Conviction Rule 1].” Id. Thus, it is up to the

       conviction court—not the habeas court—to apply Post-Conviction Rule 1(12) to

       the petition and make a determination of its applicability. See Martin, 901

       Court of Appeals of Indiana | Opinion 33A05-1608-MI-1865 | March 10, 2017   Page 8 of 9
       N.E.2d at 647 n.2 (noting that, where the petitioner’s habeas petition indicated

       that he had already filed a post-conviction petition, “the court where [the

       petitioner] was convicted and sentenced may ultimately determine that Ind.

       Post-Conviction Rule 1(12), which governs successive petitions for post-

       conviction relief, is applicable”). Accordingly, we reverse the Henry Circuit

       Court and remand with instructions to transfer Manley’s petition to the Monroe

       Circuit Court.


[19]   Reversed and remanded.3


       Baker, J., and Mathias, J., concur.




       3
         We decline to review Manley’s arguments regarding the merits of his petition. We also decline the State’s
       request to impose a $250 sanction and to impose filing restrictions.

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