MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                        Jun 29 2016, 8:18 am
this Memorandum Decision shall not be
                                                                   CLERK
regarded as precedent or cited before any                      Indiana Supreme Court
                                                                  Court of Appeals
court except for the purpose of establishing                        and Tax Court

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


APPELLANT, PRO SE
Ervin R. Hall
Wabash Valley Correctional Facility
Carlisle, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ervin R. Hall,                                           June 29, 2016
Appellant,                                               Court of Appeals Case No.
                                                         77A05-1603-MI-588
        v.                                               Appeal from the Sullivan Circuit
                                                         Court
Richard Brown, in his capacity                           The Honorable Robert E. Hunley
as Superintendent of Wabash                              II, Judge
Valley Correctional Facility                             The Honorable Robert E. Springer,
Appellee.                                                Magistrate
                                                         Trial Court Cause No.
                                                         77C01-1602-MI-098



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016    Page 1 of 8
                                         Statement of the Case
[1]   Ervin Hall (“Hall,”), who is incarcerated at the Wabash Valley Correctional

      Facility, appeals, pro se, the trial court’s order denying his petition for writ of

      habeas corpus. Hall contends that his due process rights were violated when

      the Parole Board revoked his parole without a preliminary hearing. Concluding

      that Hall’s habeas petition is tantamount to an unauthorized successive petition

      for post-conviction relief, we hold that the trial court properly denied his

      petition.


[2]   We affirm.


                                                       Issue
              Whether the trial court erred by summarily denying Hall’s petition for
              habeas corpus.

                                                       Facts
[3]   On February 6, 1992, a Lake County Superior Court sentenced Hall to a forty-

      two-year term for his Class B felony robbery conviction.1 On February 15,

      2016, Hall, who was incarcerated at the Wabash Valley Correctional Facility

      (“WVCF”), filed a pro se petition for a writ of state habeas corpus in the

      Sullivan Circuit Court. In his petition, Hall asserted that he was challenging




      1
       According to the Indiana Department of Correction’s website, Hall’s earliest possible release date for his
      Class B felony robbery conviction is August 8, 2024. See Indiana Department of Corrections, Offender Data
      Indiana Department of Corrections, http://www.in.gov/apps/indcorrection/ofs/ofs (last visited June 15,
      2016).

      Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016              Page 2 of 8
      the WVCF Parole Board’s January 11, 2016 decision to revoke his parole. Hall

      alleged that the WVCF had denied him due process “as well as [his] state right

      to procedural due process” under INDIANA CODE § 11-13-3-9 because he did

      not have a preliminary hearing. (App. 5). He further asserted that the WVCF

      Superintendent was “restraining [his] liberty” and that he should be

      “immediately . . . discharged from the custody of the superintendent after a

      hearing on his habeas petition.” (App. 5).


[4]   Three days later, on February 18, 2016, and before counsel for the WVCF

      Superintendent filed an appearance, the trial court issued an order summarily

      denying Hall’s petition without providing its reasoning for the denial.

      Thereafter, Hall filed a motion to reconsider, in which he alleged that the court

      had “insufficient ‘particulars’ before it to make an informed decision.” (App.

      8). Hall also filed a memorandum explaining the procedural history

      surrounding his parole revocation and further explaining his due process

      challenge regarding the Parole Board’s failure to hold a preliminary hearing. 2

      Hall also filed an affidavit in support thereof. The trial court denied Hall’s

      motion to reconsider. Hall now appeals.




      2
       Hall acknowledged that he signed a “Waiver of Preliminary Hearing” form but asserted that a parole agent,
      not Hall, initialed the part of the form indicating that he had waived the preliminary hearing.

      Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016            Page 3 of 8
                                                      Decision
[5]   Before we discuss Hall’s argument, we note that no appellee’s brief has been

      filed in this appeal.3 When an appellee fails to submit an appellate brief, “we

      need not undertake the burden of developing an argument on the appellee’s

      behalf.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting

      Trinity Homes, LLC v. Fung, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we

      will reverse the trial court’s judgment if the appellant’s brief presents a case of

      prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima

      facie error in this context is defined as, at first sight, on first appearance, or on

      the face of it.” Id. (internal quotation marks and citation omitted).


[6]   Hall claims that the trial court erred in denying his petition for a writ of habeas

      corpus. 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 Corr. 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). A defendant is entitled to a




      3
        The State filed a “Notice of Non-Involvement,” noting that it was not a party to this appeal and did not file
      a brief on behalf of the Appellee because the trial court summarily dismissed Hall’s petition before it could
      enter an appearance for Brown. (State’s Notice at 1-2).

      Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016                 Page 4 of 8
      writ of habeas corpus only if he or she is unlawfully detained and is entitled to

      immediate release. Benford v. Marvel, 842 N.E.2d 826, 828 (Ind. Ct. App. 2006)

      (emphasis added).


[7]   When challenging the trial court’s denial of his habeas petition, Hall focuses on

      his argument that the Parole Board erred by revoking his parole. As he did in

      his motion to reconsider, he sets forth factual arguments about the validity of

      his preliminary hearing waiver form and whether he was denied due process.

      The trial court, which entered a general denial, did not specifically address the

      merits of his argument and neither will we. Instead, we will address the

      procedural posture of the case, which reveals that his petition should have been

      treated as a petition for post-conviction relief and that it was properly denied

      because it was an unauthorized successive petition.


[8]   Our Court has explained how trial courts should differentiate and treat a state

      habeas petition and a post-conviction petition:

              Jurisdiction over writs of habeas corpus is traditionally with the
              court in the county where the petitioner is incarcerated, Ind.
              Code § 34-25.5-2-2 (1998), whereas petitions for post-conviction
              relief must be filed in the conviction court, Ind. Post-Conviction
              Rule 1(2). However, when a petitioner filed what is captioned a
              petition for writ of habeas with the court in the county of
              incarceration but the trial court deems it to be a post-conviction
              relief petition and the petitioner is attacking the validity of the
              conviction, the court where it was filed must transfer the petition
              to the conviction court. Ind. Post-Conviction Rule 1(1)(c). But,
              if the petitioner erroneously files a writ of habeas corpus that
              should be a post-conviction relief petition because it does not
              allege that the petitioner’s remedy is immediate discharge (and it
      Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016   Page 5 of 8
               does not attack the validity of the conviction), such a petition
               may remain in the court in the county of incarceration. See
               Hawkins v. Jenkins, 374 N.E.2d 496, 498 (Ind. 1978).


       Partlow, 756 N.E.2d at 980.


[9]    Here, Hall was sentenced to forty-two years in 1992. Looking at the merits of

       Hall’s habeas petition, it is clear that Hall is not claiming that he is entitled to be

       immediately released because his sentence has fully expired. Instead, Hall

       claims that his parole was improperly revoked. Thus, Hall’s petition should

       have been treated as one for post-conviction relief. See Ind. Post-Conviction

       Rule 1(1)(a)(5) (“Any person who has been convicted of, or sentenced for, a

       crime by the court of this state and who claims . . . that his sentence has

       expired, his probation, parole, or conditional release unlawfully revoked, or he is

       otherwise unlawfully held in custody or other restraint . . . may institute at any

       time a proceeding under this Rule to secure relief.”) (emphasis added). See also

       Hardley v. State, 893 N.E.2d 740 (Ind. Ct. App. 2008) (holding that a petition for

       writ of habeas corpus – in which a petitioner claimed his parole was improperly

       revoked – should have been treated as a petition for post-conviction relief). For

       the reasons stated above, Hall has not chosen the proper vehicle for the relief he

       is seeking.


[10]   While the trial court’s order does not reveal if it treated Hall’s petition as a post-

       conviction petition, the trial court, nevertheless, correctly denied the petition

       because it was tantamount to an unauthorized successive petition for post-

       conviction relief. Our Court’s docket reveals that on five occasions, Hall has

       Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016   Page 6 of 8
       sought and has been denied permission by our court to file a successive petition

       for post-conviction relief in his underlying criminal conviction cause from Lake

       County. This suggests that Hall has already filed a petition for post-conviction

       relief. Our Indiana Supreme Court has explained that when a petitioner’s post-

       conviction “petition is not the first for post-conviction relief a petitioner has

       filed, that petitioner must follow the procedure outlined in P-C.R. 1(12) for

       filing successive petitions.” Young v. State, 888 N.E.2d 1255, 1257 (Ind. 2008).

       Under Post-Conviction Rule 1(12), a petitioner must file, with 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. 1(12)(a). This Court

       will authorize the filing of a successive post-conviction petition, if a petitioner

       establishes a “reasonable probability that [he] is entitled to post-conviction

       relief.” See P-C.R. 1(12)(b). Hall did not file a petition seeking to file a

       successive post-conviction petition to challenge his parole revocation. Thus,

       upon receiving Hall’s habeas corpus petition and assumingly treating it a post-

       conviction petition, the trial court properly denied Hall’s petition because it was

       an unauthorized successive petition. See State ex rel. Woodford v. Marion Superior

       Court, 655 N.E.2d 63, 66 (Ind. 1995) (affirming the trial court’s dismissal of a

       successive post-conviction petition where the petitioner had not been given

       permission to file the petition). Accordingly, we affirm the trial court’s denial

       of Hall’s petition.


[11]


       Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016   Page 7 of 8
[12]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016   Page 8 of 8
