MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 14 2015, 9:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James E. Manley Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Manley, April 14, 2015
Appellant-Defendant, Court of Appeals Case No.
53A01-1407-CR-317
v. Appeal from the Monroe Circuit
Court.
The Honorable Marc R. Kellams,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 53C02-9702-CF-74
Sullivan, Senior Judge
[1] James E. Manley appeals from the trial court’s order denying his motion for
change of venue from the judge and his motion for relief from judgment.
Manley contends that the trial court committed reversible error by denying his
motions. However, finding the State’s cross-appeal issue—whether this is an
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impermissible attempt to litigate an unauthorized successive petition for post-
conviction relief—dispositive, we dismiss his appeal.
[2] Manley, who is incarcerated as a result of his conviction of two counts of Class
A felony child molesting and two counts of Class B felony child molesting, filed
his motion for change of venue from judge and motion for relief from judgment
in Monroe Circuit Court. In those motions, Manley contended that the child
molesting statutes under which he was convicted are unconstitutionally
overbroad, that he was privileged to engage in the sexual conduct at issue under
the parental privilege to otherwise criminal acts, that material exculpatory
information was withheld from him at trial, and that the trial court colluded
with the State to withhold material evidence from him at trial necessitating a
reversal of his convictions.
[3] Manley submitted a memorandum of law in support of his motions, but did not
submit any affidavits or other evidence to support his claims. Without holding
a hearing, the trial court denied Manley’s motions. Manley now appeals.
[4] Manley had previously unsuccessfully sought relief on direct appeal from his
convictions. See Manley v. State, No. 53A04-9806-CR-333 (Ind. Ct. App.
February 18, 1999). Thereafter, Manley’s appeal from the denial of his petition
for post-conviction relief was rejected by this Court. See Manley v. State, No.
53A01-0103-PC-107 (Ind. Ct. App. August 28, 2001) (contending that the child
molesting statutes were unconstitutionally overbroad and that exculpatory
evidence was withheld from him). Manley’s subsequent pro se appeal from the
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denial of his petition for relief requesting a sentence modification was denied by
this Court. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007). This
Court has rejected two of his previous requests to file his successive petitions for
post-conviction relief in 2004 and in 2006.
[5] In his reply brief, Manley argues that the State is precluded from raising its
cross-appeal issue because the State waived the argument. More specifically, he
claims that the State did not raise the affirmative defense of res judicata at the
trial court level and did not file a motion to dismiss this appeal prior to filing an
appellee brief.
[6] Here, although captioned as a motion for change of venue from the judge and
motion for relief from judgment, Manley’s requests are collateral attacks of his
convictions.
The Court’s rules permit a person convicted of a crime in an
Indiana state court to challenge the conviction and sentence
collaterally in a post-conviction proceeding. See Ind. Post-
Conviction Rule 1. As indicated above, petitioner has already
availed himself of that procedure. Post-Conviction Rule 1,
Section 12 specifies the procedure for requesting a second, or
“successive” collateral review. The rule states:
(b) The court will authorize the filing of the petition if the
petitioner establishes a reasonable possibility that the petitioner is
entitled to post-conviction relief. In making this determination,
the court may consider applicable law, the petition, and materials
from the petitioner’s prior appellate and post-conviction
proceedings including the record, briefs and court decisions, and
any other material the court deems relevant.
Wrinkles v. State, 776 N.E.2d 905, 907 (Ind. 2002).
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[7] Here, the claims Manley raises on appellate review have already been decided
against him on prior appellate review. “Res judicata, whether in the form of
claim preclusion or issue preclusion (also called collateral estoppel), aims to
prevent repetitious litigation of disputes that are essentially the same, by
holding a prior final judgment binding against both the original parties and their
privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013).
[8] Although Manley’s claims are collateral attacks on his convictions and are
barred by res judicata (thereby defeating the required showing of a reasonable
possibility of entitlement to post-conviction relief), this appeal must be
dismissed because he has failed to follow the appropriate appellate procedure.
He has already pursued a direct appeal from his convictions and an appeal from
the denial of his petition for post-conviction relief. Two requests for the
authorization to file a successive petition for post-conviction relief have been
declined by this Court.
[9] Because Manley has already litigated one petition for post-conviction relief
relating to his convictions, he must follow the procedure outlined in Post-
Conviction Rule 1(12) for filing successive petitions. See Young v. State, 888
N.E.2d 1255, 1257 (Ind. 2008). Manley appeals from the denial of relief he
sought via an unauthorized successive petition for post-conviction relief,
therefore we must dismiss the appeal.
[10] In light of the above, we dismiss Manley’s appeal.
[11] Dismissed.
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Bailey, J., and Bradford, J., concur.
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