MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Feb 19 2019, 11:01 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY PRO SE                                          ATTORNEYS FOR APPELLEE
Ellis Thomas                                             Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Tyler Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ellis Thomas,                                            February 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1172
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48D03-9512-CF-426



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019                Page 1 of 6
                                STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Ellis Thomas (Thomas), appeals the trial court’s denial of

      his Motion for New Trial or Petition for Writ of Error Coram Nobis.


[2]   We dismiss.


                                                    ISSUE
[3]   Thomas presents three issues on appeal, only one of which we find to be

      dispositive: Whether the trial court erred when it denied his Motion for New

      Trial or Petition for Writ of Error Coram Nobis.


                      FACTS AND PROCEDURAL HISTORY
[4]   The facts of the underlying offenses, as originally charged under Cause Number

      48D03-9512-CF-000426 (Cause No. 426) and as found by our supreme court,

      are as follows:


              In the early morning hours of October 3, 1993, Marvin McCloud
              and Damon Nunn were seated in McCloud’s car in the parking
              lot of an after-hours night club. Thomas, along with his brother
              Walter Goudy, a cousin Lamont Thomas, and an acquaintance
              Kaidi Harvell, saw McCloud’s car and devised a plan to take the
              rims and tires. As McCloud began to drive away, two gunmen
              approached the car with handguns drawn and began firing.
              McCloud died as a result of a gunshot wound to the chest. Nunn
              survived the fusillade although he was severely injured by five
              gunshot wounds to the face, chest, and leg. All four men were
              charged in the shootings. Under terms of an agreement, Harvell
              pleaded guilty to assisting a criminal. He testified at trial that
              Thomas and Goudy were the shooters. At a separate trial, in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019   Page 2 of 6
              which Harvell also testified, Goudy was convicted of murder,
              attempted murder, attempted robbery, and attempted carjacking.
              See Goudy v. State, 689 N.E.2d 686 (Ind. 1997).


              While Goudy’s case was pending, Thomas wrote a letter to the
              presiding judge claiming that he, and not Goudy, was responsible
              for shooting McCloud and Nunn. In fact, Thomas claimed that
              he and Harvell were the shooters. Thomas also telephoned
              Goudy’s attorney making the same representation. The
              conversation was recorded. Over Thomas’ objection at trial, the
              State introduced into evidence both the letter and the recorded
              conversation. Ultimately the jury returned a verdict of guilty as
              charged, and the trial court sentenced Thomas to 110 years in
              prison.


      Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000).


[5]   On February 13, 2002, Thomas filed a petition for post-conviction relief (PCR)

      which the trial court allowed him to withdraw without prejudice on November

      5, 2004. On August 13, 2007, Thomas filed a second petition for post-

      conviction relief under Cause Number 48D03-0708-PC-000204 (Cause No.

      204). On November 10, 2011, Thomas filed an amended PCR in Cause No.

      204. On March 26, 2012, the trial court held a hearing on Thomas’ amended

      PCR. On June 28, 2012, the trial court entered its Order denying Thomas’

      amended PCR. On April 12, 2013, Thomas filed his Notice of Appeal from the

      denial of his PCR. On November 20, 2013, this court dismissed Thomas’

      appeal with prejudice due to his failure to pursue the timely issuing of the

      transcript of the proceedings.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019   Page 3 of 6
[6]   On July 26, 2017, Thomas filed his Motion for New Trial or Petition for Writ

      of Error Coram Nobis under Cause No. 426 1 in which he challenged his

      convictions based on claims of new evidence, prosecutorial misconduct, due

      process violations, and insufficiency of the evidence to support his convictions.

      On April 2, 2018, the trial court held a hearing on Thomas’ petition. The State

      argued that Thomas’ petition should be denied because it constituted a

      successive PCR which he had not obtained leave of this court to file. At the

      conclusion of the April 2, 2018, hearing, the trial court denied Thomas’

      petition.


[7]   Thomas now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[8]   Thomas argues that his Motion for New Trial or Petition for Writ of Error

      Coram Nobis was properly before the trial court. The State counters that the writ

      of error coram nobis was superseded by the adoption of Indiana’s post-

      convictions rules and procedures. We agree with the State.


[9]   A writ of error coram nobis is a writ “directed to a court for review of its own

      judgment predicated on alleged errors of fact.” Black’s Law Dictionary 362 (8th

      ed. 1999). The writ of error coram nobis was formerly a vehicle for challenging



      1
        While pursuing his PCR under Cause No. 204, Thomas also challenged the validity of his convictions in
      Cause No. 426. On January 18, 2012, Thomas filed a pro se Motion to Set Aside Conviction and Vacate
      Sentence which seemingly stalled when he was granted a continuance of the proceedings to issue subpoenas.
      In addition, On July 17, 2015, Thomas filed a State Writs of Habeas Corpus Relife [sic] which the trial court
      dismissed on September 18, 2015.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019                 Page 4 of 6
       the validity of a defendant’s convictions and sentence. See, e.g., State ex rel.

       Kunkel v. Circuit Court of La Porte Cty., 209 Ind. 682, 685, 200 N.E. 614, 615

       (1936). However, in 1969, Indiana adopted its Rules of Post-Conviction

       Remedies which provide those who have been convicted of or sentenced for a

       crime a means of challenging the conviction or sentence on a variety of

       grounds. See Ind. Post-Conviction Rule 1(1)(a). Post-conviction Rule 1(1)(b)

       provides in relevant part:


               Except as otherwise provided in this Rule, it comprehends and
               takes the place of all other common law, statutory, or other
               remedies heretofore available for challenging the validity of the
               conviction or sentence and it shall be used exclusively in place of
               them.


       (emphasis added); see also Bell v. State, 473 N.E.2d 635, 636 (Ind. Ct. App. 1985)

       (“Our Post-Conviction Rule No. 1 supersedes all former procedures for

       obtaining post-conviction relief specifically including the writ of error coram

       nobis.”). Post-Conviction Rule 1, Section 12, mandates that a petitioner who

       wishes to file a second, or successive, PCR must petition for authorization from

       the appellate court to do so. See Young v. State, 888 N.E.2d 1255, 1257 (Ind.

       2008) (holding that when a “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.”).


[10]   Here, Thomas had already pursued a direct appeal of his convictions by the

       time he filed his Motion for New Trial or Petition for Writ of Error Coram Nobis

       challenging his convictions on a variety of grounds. As such, his Motion for
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019   Page 5 of 6
       New Trial or Petition for Writ of Error Coram Nobis was in the nature of a PCR,

       no matter how he titled it. See Bell, 472 N.E.2d at 636 (treating Bell’s petition

       for writ of error coram nobis as a PCR). Thomas also had already pursued a

       PCR in Cause No. 204 which was denied in 2012, and his appeal from that

       denial was dismissed by this court in 2013. Therefore, the instant petition was a

       second, or successive PCR, which he was required to seek leave of the appellate

       court for permission to file. See P-C.R. 1(12). Thomas did not seek that

       permission before filing his second PCR, and, thus, we dismiss Thomas’ appeal,

       with prejudice, for lack of jurisdiction.


                                             CONCLUSION
[11]   Based on the foregoing, we conclude that Thomas’ Motion for New Trial or

       Petition for Writ of Error Coram Nobis was an unauthorized successive PCR,

       and we dismiss the instant appeal for lack of jurisdiction.


[12]   Dismissed.


[13]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1172 | February 19, 2019   Page 6 of 6
