MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 25 2018, 9:53 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Antwoin Richmond                                         Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Antwoin Richmond,                                        September 25, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-MI-366
        v.                                               Appeal from the Henry Circuit
                                                         Court
Keith Butts,                                             The Honorable Kit C. Dean Crane,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         33C02-1710-MI-129



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018                Page 1 of 7
[1]   Since the revocation of his parole, Antwoin Richmond has filed several pro se

      petitions for writ of habeas corpus. The trial court denied his most recent

      habeas petition on grounds of res judicata. On appeal, Richmond, pro se,

      delineates seven issues that can be consolidated into one. Did the trial court err

      in denying his habeas petition?


[2]   We affirm.


                                       Facts & Procedural History


[3]   In December 2007, Richmond pled guilty to Class A felony child molesting and

      was sentenced to twenty years. Richmond was released on parole in February

      2013. His parole was revoked in May 2016,1 and he was ordered to serve the

      remainder of his fixed term. In May 2017, Richmond was denied release to

      parole.


[4]   On October 24, 2016, Richmond, pro se, filed a petition for writ of habeas

      corpus asserting that the Indiana Department of Correction did not properly

      award him good-time credit. On January 10, 2017, the trial court granted the

      State’s motion for summary judgment, concluding that contrary to Richmond’s

      claim, his earned good-time credit did not reduce his fixed term but was to be

      applied in determining his eligibility for parole. Richmond filed a second




      1
       In April 2016, Richmond submitted a urine sample, which authorities determined had been adulterated or
      diluted by Richmond. This set into motion a series of events that culminated in the revocation of
      Richmond’s parole.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018             Page 2 of 7
      habeas petition on March 6, 2017, again raising the issue of credit time but also

      adding a claim that he was deprived of due process. On May 16, 2017, the trial

      court granted summary judgment in favor of the State concluding that

      Richmond’s claim was barred on the basis of res judicata given the prior entry

      of summary judgment on Richmond’s first habeas petition. Richmond

      appealed, and in a memorandum decision, this court affirmed the entry of

      summary judgment in favor of the State. Richmond v. State, 33A01-1707-MI-

      1537, slip op. at 6 (Ind. Ct. App. Dec. 12, 2017). The court determined that the

      second habeas petition was “essentially the same dispute, between the same

      parties, repackaged to include a due process argument.” Id. Further, we stated

      that “even were we to conclude that the claims in each petition are in fact

      different, Richmond could have and should have raised his due process

      argument in his first habeas corpus petition.” Id.


[5]   On July 10, 2017, Richmond filed a pro se petition for post-conviction relief

      (PCR Petition), which he amended on July 18, 2017. In this petition,

      Richmond challenged the procedures used in revoking his parole and in later

      denying his release to parole, arguing that they did not comply with due

      process. Specifically, Richmond argued that (1) the proper procedures related

      to procuring his urine sample were not followed, (2) the evidence was

      insufficient to support the revocation/denial of his parole, (3) he was not

      provided with the statutory criteria prior to his parole release hearing, (4) the

      parole board did not consider the statutory factors for denying his release to

      parole, and (5) neither the trial court nor his defense counsel informed him of


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018   Page 3 of 7
      the consequences of his plea agreement. The State filed a motion for summary

      disposition as to claims (1) through (4), which the trial court granted on

      October 25, 2017.2


[6]   Richmond filed the instant habeas petition—his third—on October 16, 2017,

      while his PCR Petition was still pending. Richmond again challenged the

      revocation of his parole on due process grounds. He specifically argued that

      “the process utilized in creating his parole violation report and the evidence

      included in the report were invalid and in violation of his due process.”

      Appellee’s Appendix Vol. 2 at 2. On November 29, 2017, the State filed its

      response to the habeas petition as well as a motion to dismiss pursuant to Ind.

      Trial Rule 12(B)(6). The State argued, among other things, that Richmond’s

      habeas petition was barred by the doctrine of res judicata. On December 18,

      2017, the trial court granted the State’s motion to dismiss and denied

      Richmond’s habeas petition. Richmond filed a motion for relief from

      judgment, which the trial court denied. This appeal ensued. Additional facts

      will be provided as needed.


                                          Discussion & Decision




      2
       On October 24, 2017, Richmond submitted a motion to withdraw his petition for post-conviction relief.
      The trial court received the motion on November 13, 2017, and, although the court had already entered
      summary disposition on the PCR Petition, the trial court granted Richmond’s motion to withdraw the PCR
      Petition without prejudice.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018            Page 4 of 7
[7]   A T.R. 12(b)(6) motion to dismiss for failure to state a claim tests the legal

      sufficiency of the claim, rather than the facts supporting it. Babes Showclub,

      Jaba, Inc. v. Lair, 918 N.E.2d 308, 310 (Ind. 2009). We review a trial court’s

      grant of such a motion de novo, viewing the pleadings in the light most

      favorable to the nonmoving party and construing every reasonable inference in

      the nonmovant’s favor. Id. T.R. 12 provides that if a trial court considering a

      motion under T.R. 12(B)(6) is presented with matters outside the pleadings and

      not excluded by the court, the motion to dismiss shall be treated as one for

      summary judgment. Review of a trial court’s ruling on a motion for summary

      judgment is de novo. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). As

      for the denial of Richmond’s motion for relief from judgment, because the trial

      court ruled on a paper record without conducting an evidentiary hearing, the

      standard of review on appeal is de novo. Williams v. Tharp, 934 N.E.2d 1203,

      1215 (Ind. Ct. App. 2010).


[8]   This appeal is Richmond’s third bite at the apple. Summary judgment was

      granted in favor of the State on both of his prior habeas petitions, the first one

      based on the merits and the second based on the doctrine of res judicata given

      the outcome with the first habeas petition. As with his second habeas petition,

      res judicata precludes relief under the instant petition.


[9]   “Res judicata serves to prevent litigation of disputes which are essentially the

      same. The doctrine of res judicata consists of two distinct components, claim

      preclusion and issue preclusion.” Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195

      (Ind. Ct. App. 2003) (citation omitted).

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018   Page 5 of 7
               Claim preclusion is applicable when a final judgment on the
               merits has been rendered and acts to bar a subsequent action on
               the same claim between the same parties. When claim
               preclusion applies, all matters that were or might have been litigated
               are deemed conclusively decided by the judgment in the prior
               action. Claim preclusion applies when the following four factors
               are present: (1) the former judgment was rendered by a court of
               competent jurisdiction; (2) the former judgment was rendered on
               the merits; (3) the matter now at issue was, or could have been,
               determined in the prior action; and (4) the controversy
               adjudicated in the former action was between parties to the
               present suit or their privies.


       Id. (emphases added) (citations omitted).


[10]   The judgment rendered on Richmond’s first habeas petition was rendered by a

       court of competent jurisdiction and on the merits. Richmond’s second habeas

       petition presented “essentially the same dispute, between the same parties,

       repackaged to include a due process argument.” Richmond, slip op. at 2. This

       court held that even if the claims in the first and second habeas petitions were in

       fact different, Richmond “could have and should have raised his due process

       argument in his first habeas corpus petition.” Id. Thus, it was determined that

       the second habeas petition was precluded under the doctrine of res judicata.


[11]   In the instant habeas petition, Richmond argues that “the process utilized in

       creating his parole violation report and the evidence included in the report were

       invalid and in violation of his due process.” Appellee’s Appendix Vol. 2 at 2.

       These arguments were known and available to Richmond when he filed his first




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018   Page 6 of 7
       habeas petition and could have been determined at that time. This type of

       repetitive litigation is explicitly precluded under the doctrine of res judicata.


[12]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-366 | September 25, 2018   Page 7 of 7
