                                                                                FILED
                                                                            Apr 20 2016, 8:24 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Eddie G. Love                                              Gregory F. Zoeller
Bunker Hill, Indiana                                       Attorney General of Indiana

                                                           Chandra K. Hein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Eddie G. Love,                                             April 20, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A05-1509-CR-1327
        v.                                                 Appeal from the Elkhart Circuit
                                                           Court
State of Indiana,                                          The Honorable Terry C.
Appellee-Plaintiff                                         Shewmaker, Judge
                                                           Trial Court Cause No.
                                                           20C01-0602-FB-12



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016                           Page 1 of 6
                                               Case Summary
[1]   Eddie G. Love (“Love”) appeals the denial of his petition for habeas corpus and

      motion to dismiss from the Elkhart Circuit Court, raising several issues for our

      review. Because we conclude that Love improperly filed a successive petition

      for post-conviction relief without permission from this Court in accordance

      with Indiana Post-Conviction Rule 1(12), we remand to the Elkhart Circuit

      Court with instructions to dismiss Love’s claims.1



                                Facts and Procedural History
[2]   On February 17, 2006, Love was charged with two counts of dealing in

      cocaine, class B felonies under the criminal code at that time. 2 A jury found

      Love guilty on both counts, and the trial court sentenced Love to eighteen years

      in prison. Love appealed the judgment; this Court affirmed on October 30,

      2007. Love v. State, No. 20A03-0703-CR-160, slip op. at 3 (Ind. Ct. App. Oct.

      30, 2007), trans. denied.


[3]   On June 3, 2008, Love filed a petition for post-conviction relief, which he

      amended on February 19, 2009. (App. at 5-6.) During the pendency of this

      proceeding, Love filed a petition for habeas corpus on December 4, 2009, which




      1
          We do not disturb the order for sanctions.
      2
        Ind. Code § 35-48-4-1. The Indiana General Assembly recently revised the substantive provisions of this
      state’s criminal statutes. We refer here to the substantive criminal provisions in effect at the time of Love’s
      trial and conviction.

      Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016                             Page 2 of 6
      was denied by the court as it was considering his petition for post-conviction

      relief. (App. at 13.) Love’s post-conviction relief petition was denied on

      January 27, 2010. Love appealed, and we affirmed on January 18, 2011. Love

      v. State, No. 20A03-1002-PC-76, slip op. at 7 (Ind. Ct. App. Jan. 18, 2011),

      trans. denied.


[4]   Subsequently, Love filed a petition for habeas corpus in federal court alleging

      ineffective assistance of counsel. This petition was denied and the federal

      district court refused to certify an appeal on September 10, 2012. Love v.

      Superintendent, Indiana State Prison, No. 3:11-CV-167 JD, 2012 WL 4017796

      (N.D. Ind. Sept. 10, 2012).


[5]   Love again sought post-conviction relief. On February 13, 2013, this Court

      denied permission to file a successive petition. Nonetheless, “Love filed three

      requests to file a successive petition for post-conviction relief, each of which this

      Court declined to authorize. See Cause Nos. 20A04–1212–SP–637; 20A03–

      1309–SP–381; and 20A04–1312–SP–639.” Love v. State, 22 N.E.3d 663, 664

      (Ind. Ct. App. 2014), trans. denied. When Love was last before this Court in

      2014, we denied his appeal, directed the trial court to consider sanctions for

      future barred claims, and required that Love list all of his cases in future

      appeals. Love, 22 N.E.3d at 664-65.


[6]   On April 4, 2014, Love filed a petition for a writ of habeas corpus in LaPorte

      County, where he was incarcerated. (App. at 47-48.) He amended his petition

      in March, 2015. (App. at 54-56). On June 1, 2015, the case was transferred to


      Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016      Page 3 of 6
      the Elkhart Circuit Court. (App. at 63.) On July 30, 2015, in open court, Love

      filed a motion to dismiss. The Elkhart Circuit Court denied his motions on

      August 10, 2015. (App. at 46.) Further, the Elkhart Circuit Court heeded this

      Court’s prior advice to implement sanctions, following the Indiana Supreme

      Court’s opinion in Zavodnik v. Harper, 17 N.E.3d 259 (Ind. 2014). Specifically,

      the Elkhart Circuit Court imposed specific filing criteria for any future litigation

      Love might pursue, and stripped Mr. Love of credit time earned as an inmate in

      the Department of Correction (“DOC”).3 (App. at 46.)



                                   Discussion and Decision
[7]   At the outset, we address Love’s contention that he filed a petition for habeas

      corpus that should have remained in the LaPorte Superior Court. The purpose

      of habeas corpus is to determine the lawfulness of a person’s restraint and may

      not be used to attack collateral matters. Hardley v. State, 893 N.E.2d 740, 742

      (Ind. Ct. App. 2008), trans. denied. Our post-conviction rules provide that when

      an individual files a habeas petition in the county of incarceration but actually

      “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 [post-conviction relief].” Ind. Post-Conviction

      Rule 1(1)(c).




      3
       I.C. § 35-50-6-5(a)(4) permits the revocation of credit time “[i]f a court determines that a civil claim brought
      by the person in a state or an administrative court is frivolous, unreasonable, or groundless.”

      Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016                             Page 4 of 6
[8]   Here, Love’s habeas petition attempted to attack the probable cause foundation

      of his conviction, a matter barred as res judicata. Along with his petition for

      habeas corpus, Love filed a motion to dismiss his original charges. It is clear that

      he intended to collaterally attack his original conviction instead of discovering

      the legal reason for his detainment. See Hardley, 893 N.E.2d at 743. Thus, the

      LaPorte Superior Court did not err when it transferred the petition and motion

      to dismiss to the Elkhart Circuit Court. In accordance with Post-Conviction

      Rule 1(1)(c), then, Love’s petition and motion were to be treated as a petition

      for post-conviction relief.


[9]   Indiana Post-Conviction Rule 1(12) provides that, before a petitioner may file a

      successive post-conviction relief petition, a petitioner must request and receive

      leave to pursue a successive petition from either this Court or the Indiana

      Supreme Court. As in prior cases, Love has applied for post-conviction relief

      without having first sought leave under the Post-Conviction Rules. When a trial

      court encounters an improper successive petition for post-conviction relief, it

      should dismiss the petition. See Young v. State, 888 N.E.2d 1255, 1257 (Ind.

      2008) (affirming the dismissal of an improper successive petition); Azania v.

      State, 738 N.E.2d 248, 250 (Ind. 2000) (“It was procedurally improper to file the

      petition without authorization from this court…. The [trial court] is therefore

      directed to dismiss the [PCR petition].”); Young v. Duckworth, 271 Ind. 554, 557,

      394 N.E.2d 123, 125 (1979) (“It is obvious in this case that neither [trial court]

      had jurisdiction to entertain a petition for a writ of habeas corpus inasmuch as

      petitioner was serving time under a proper commitment, his sentence had not

      Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016   Page 5 of 6
       expired and he had not been denied good time or credit time.”); Beech v. State,

       702 N.E.2d 1132, 1134 (Ind. Ct. App. 1999) (“the trial court erred when it

       entertained jurisdiction over [an improper successive petition]”).4


[10]   Love has previously sought post-conviction relief. On multiple occasions, he

       has failed to properly request permission to file a successive post-conviction

       petition from this Court or the Indiana Supreme Court. The same is true in the

       instant action. Accordingly, we order the trial court to vacate its judgment

       (except sanctions) and remand with instructions to otherwise enter an order of

       dismissal.


[11]   Remanded.


       Vaidik, C.J., and Crone, J., concur.




       4
        Love also contends that the Elkhart Circuit Court lacked subject matter jurisdiction over his case. However,
       he makes no cogent argument with citation to relevant authority. See Ind. Appellate Rule 46(A)(8)(a).
       Having failed to do so, Love has waived this issue.

       Court of Appeals of Indiana | Opinion 20A05-1509-CR-1327 | April 20, 2016                        Page 6 of 6
