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.
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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).
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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.
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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).
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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
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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
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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]
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[12] Affirmed.
Kirsch, J., and Riley, J., concur.
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