MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2018, 8:59 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James E. Manley Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Manley, October 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-725
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
53C02-9702-CF-74
Mathias, Judge.
[1] James E. Manley (“Manley”) appeals the trial court’s denial of his Trial Rule
60(B) Motion for Relief from Judgment filed on March 5, 2018 seeking relief
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from a judgment of conviction on four counts of Child Molesting entered on
November 26, 1997. He claims, as he has on prior occasions, that the child
molestation statutes under which he was convicted are unconstitutional.
[2] We dismiss his appeal.
Facts and Procedural History
[3] The facts of this matter are substantially similar to the facts in Manley v. State,
Case No. 18A-CP-1149, also handed down on today’s date. However, the facts
as they are pertinent to this appeal are recited below.
[4] In 1997, Manley was convicted of two counts of Class A felony child molesting
and two counts of Class B felony child molesting (“the criminal case”). The
victim was his eight-year-old daughter. Manley was ordered to serve an
aggregate fifty-five-year sentence in the Department of Correction. Manley’s
convictions were affirmed on direct appeal. Manley v. State, No. 53A04-9806-
CR-333, 708 N.E.2d 928 (Ind. Ct. App. Feb. 18, 1999).
[5] Manley subsequently filed a petition for post-conviction relief raising eleven
issues (the “post-conviction proceedings”), including the present claims that the
statute defining the offense of child molesting is unconstitutional. After an
evidentiary hearing was held, the post-conviction court denied his petition on
February 13, 2001. Manley appealed the denial, and our court affirmed the
post-conviction court in a memorandum decision dated August 28, 2001.
Manley v. State, No. 53A01-0103-PC-107 (Ind. Ct. App. Aug. 28, 2001), trans.
denied.
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[6] Manley has continued to attempt to litigate the validity of his conviction and
sentence over the last seventeen years. In 2004 and 2006, Manley sought
permission from our court to file successive petitions for post-conviction relief.
This court denied both requests. Also, in 2006, Manley filed a motion to modify
his sentence. His motion was denied, and the trial court’s ruling was affirmed
on appeal. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007), trans.
denied.
[7] In 2014, Manley filed a motion for relief from judgment and motion for change
of venue in his criminal case. In those motions, Manley alleged 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[.]” Manley v.
State, No. 53A01-1407-CR-317, 31 N.E.3d 1046, *1 (Ind. Ct. App. April 14,
2015), trans. denied. The trial court denied his motions. On appeal, our court
concluded that “Manley’s requests are collateral attacks of his convictions” and
“have already been decided against him on prior appellate review.” Id. at *1–2.
Because Manley’s motions were an impermissible attempt to litigate an
unauthorized successive petition for post-conviction relief, our court dismissed
his appeal. Id. at *2.
[8] In December 2015, Manley filed his third petition seeking permission to file a
successive post-conviction petition. His request was denied in February 2016.
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[9] Two months later, Manley filed a petition for writ of habeas corpus in Henry
Circuit Court, which is the county where Manley is incarcerated.1 In his
petition, Manley continued to claim that the child molesting statute was
unconstitutional, that he did not receive a fair trial from an impartial tribunal,
and he was erroneously sentenced. Concluding that Manley’s petition equated
to an unauthorized successive petition for post-conviction relief, the Henry
Circuit Court dismissed his petition rather than transferring the petition to
Monroe Circuit Court pursuant to Post-Conviction Rule 1. See Manley v. Keith
Butts, 71 N.E.3d 1153, 1155 (Ind. Ct. App. 2017), trans. denied. Our court agreed
that Manley’s petition was an improper challenge to the validity of his
convictions and sentence. Id. at 1156. However, we concluded that the Henry
Circuit Court was required to transfer the petition to the court of conviction, i.e.
the Monroe Circuit Court, under Post-Conviction Rule 1(1)(c). Our court also
observed that the conviction court, not the habeas court, must determine
whether Post-Conviction Rule 1(12), which governs successive petitions for
post-conviction relief, is applicable. Id. at 1157.
1
Manley also filed a petition for habeas corpus in Henry Circuit Court alleging unlawful incarceration. See
Manley v. Keith Butts & Geo Group, Inc., No. 33A05-1509-MI-1502, 47 N.E.3d 664 (Ind. Ct. App. Feb. 10,
2016) (rejecting Manley’s claim that New Castle Correctional Facility lacks legal authority to have custody
over him because the facility is operated by a private corporation), trans. denied. In addition, Manley filed a
complaint for declaratory judgment against the “Monroe County Prosecutor” alleging that the “trial court
violated judicial canons by asserting an affirmative defense on behalf of the prosecutor. Manley v. Monroe
County Prosecutor, No. 53A01-1402-MI-65, 16 N.E.3d 488 at *1 (Ind. Ct. App. July 15, 2014), trans. denied.
Manley attempted to challenge the constitutionality of the child molesting statute in his complaint. The trial
court denied Manley’s motion, and the denial was affirmed on appeal. Id. at *1–2 (observing that Manley’s
complaint was an attempt to collaterally challenge his conviction and sentence).
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[10] In his challenges to his Indiana convictions in the federal court system, Manley
has accumulated at least three “strikes” under 28 U.S.C. § 1915(g), which
provides that a court may not grant a prisoner leave to proceed in forma
pauperis
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
Manley v. Ind. Dep’t of Correction, 2018 WL 4352636 *1 (S.D. Ind. Sept. 12, 2018)
(quoting 28 U.S.C. § 1915(g)).
[11] On May 29, 2018, Manley also filed a 60(B) motion in his post-conviction
proceedings, in which he alleged that retired Judge E. Michael Hoff, the trial
judge who presided over his post-conviction proceedings, was listed as an
attorney for the State of Indiana on the case summary for the direct appeal in
his criminal case. Manley claimed that therefore the judge should not have
presided over his post-conviction petition and the 2001 judgment denying his
petition for relief is void. The trial court denied Manley’s 60(B) motion after
noting that “Judge E. Michael Hoff was listed as an attorney for the State of
Indiana in error.” We also affirm the trial court’s ruling in an opinion handed
down on today’s date. See Manley v. State, Case No. 18A-CP-1149, Slip op. at 8.
[12] In the instant matter, Manley appeals the denial of a Trial Rule 60(B) motion he
filed in his criminal case on March 5, 2018. He claims his convictions are void.
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In support of his motion, Manley continues to claim that the child molesting
statutes under which he was convicted are unconstitutionally overbroad and
that parental privilege allowed him to engage in the criminal sexual conduct for
which he was convicted. In an argument that he did not raise in his Trial Rule
60(B) motion or its supporting memorandum, Manley also raises the argument
on appeal that the convicting trial court could not exercise jurisdiction
concurrent with a related child in need of services (CHINS) case.
Discussion and Decision
[13] The doctrine of res judicata, whether in the form of claim preclusion or issue
preclusion, “prevents the repetitious litigation of that which is essentially the
same dispute.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). A petitioner for
post-conviction relief cannot escape the effect of claim preclusion merely by
using different language to phrase an issue and define an alleged error. Maxey v.
State, 596 N.E.2d 908, 911 (Ind. Ct. App. 1992). Post-conviction proceedings
do not afford criminal defendants the opportunity for a “super-appeal.” Bailey v.
State, 472 N.E.2d 1260, 1263 (Ind. 1985); Langley v. State, 267 N.E.2d 538, 544
(1971). As a general rule, when we decide an issue on direct appeal, the
doctrine of res judicata applies, thereby precluding its review in post-conviction
proceedings. Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994).
[14] An individual wishing to challenge a conviction and sentence collaterally may
present this challenge in a post-conviction proceeding. See Ind. Post-Conviction
Rule 1. A person who has already availed himself of one post-conviction
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proceeding must follow specific procedures for requesting successive collateral
review. The rule states
[t]he 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.
Ind. Post-Conviction Rule 1, Section 12; Young v. State, 888 N.E.2d 1255, 1257
(Ind. 2008); Lambert v. State, 867 N.E.2d 134, 137 (Ind. 2007). Where a
petitioner fails to obtain permission to file a successive petition as required by
the rules, dismissal is appropriate. State ex. rel. Woodford v. Marion Superior Court,
655 N.E.2d 63, 66 (Ind. 1995) (affirming trial court order to dismiss successive
post-conviction petition where petitioner did not obtain jurisdiction to entertain
petition.)
[15] Indiana courts have already adjudicated Manley’s present arguments on
numerous occasions. In the memorandum submitted in support of his pleading
styled as a 60(B) motion, Manley argues that the child molesting statutes under
which he was convicted are unconstitutionally overbroad and his convictions
are therefore void.2 Manley has repeatedly, and unsuccessfully, made these
2
Manley also raises the argument that the convicting criminal court could not exercise concurrent
jurisdiction with the juvenile court in a related CHINS matter. Because he did not raise this issue in his
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identical claims. He initially brought the claims in his petition for post-
conviction relief. When his successive requests to file a request for post-
conviction relief were not granted, he brought the same constitutional claims,
also styled as a Trial Rule 60(B) motion, in 2015. Our court rejected this claim
as an unauthorized successive petition for post-conviction relief. In the instant
matter, Manley yet again filed a Trial Rule 60(B) motion with the trial court
instead of seeking permission to file a successive petition for conviction relief.3
Although framed as a motion for relief of judgment, Manley’s current claims
are another unauthorized collateral attack on his convictions.
[16] We agree with the State that Manley is simply attempting to circumvent our
court’s prior orders denying his requests for authorization to file a successive
post-conviction petition. Accordingly, we dismiss this appeal.
[17] We also note that Indiana Constitution Article 1, Section 12, the open courts
clause, provides that all courts shall be open and that a remedy is to be afforded
according to the law. However, Manley does not have a right to engage in
abusive litigation, and the state has a legitimate interest in the preservation of
pleading styled as a Trial Rule 60(B) motion, the argument is waived. See Goodner v. State, 685 N.E.2d 1058,
1060 (Ind. 1997); State v. Delph, 875 N.E.2d 416, 422 (Ind. Ct. App. 2007), trans. denied.
3
We also note that the plain language of Trial Rule 60(B) requires that a motion for relief from judgment for
the reason that judgment is void must be filed “within a reasonable time.” Ind. Trial Rule 60(B)(6). The
judgment which Manley challenges was entered over twenty years ago, in 1997. As discussed throughout,
Manley also raises claims that have previously been unsuccessful in litigation in his 60(B) motion. Based on
these facts, under an ordinary 60(B) analysis, we could not conclude that Manley filed the instant 60(B)
motion “within a reasonable time.”
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valuable judicial and administrative resources. See Zavodnik v. Harper, 17 N.E.3d
259, 264 (Ind. 2014).
[18] In addition to the remedies for frivolous litigation discussed in Zavodnik, we
observe that Indiana Code section 35-50-6-5(a)(4) provides that an inmate may
be deprived of earned credit time “[i]f a court determines that a civil claim
brought by the person in a state or administrative court is frivolous,
unreasonable, or groundless.”4
[A] claim is frivolous if it is made primarily to harass or
maliciously injure another, if the proponent is not able to make a
good-faith and rational argument on the merits of the claim, or if
the proponent cannot support the action by a good-faith and
rational argument for extension, modification, or reversal of
existing law. A claim is “unreasonable” if, considering the
totality of the circumstances, no reasonable attorney would
consider the claim justified or worthy of litigation. A claim is
“groundless” if there are no facts that support the legal claim
relied upon.
Sumbry v. Boklund, 836 N.E.2d 430, 431 (Ind. 2005).
[19] Manley’s Trial Rule 60(B) motion filed in this case meets the definitions of
frivolous, unreasonable and groundless claims. If Manley continues to file
frivolous and groundless motions or petitions in an attempt to collaterally
4
“Before a person may be deprived of educational credit or good time credit, the person much be granted a
hearing to determine the person’s guilt or innocence and, if found guilty, whether deprivation of earned
educational credit or good time credit is an appropriate disciplinary action for the violation.” Ind. Code § 35-
50-6-5(b).
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attack his convictions and sentence, we urge the trial court to consider the
remedies discussed above. See Love v. State, 22 N.E.3d 663, 665 (Ind. Ct. App.
2014), trans. denied.
Conclusion
[20] Manley’s claims are collateral attacks on his convictions and are barred by res
judicata. Moreover, because he failed to follow the proscribed appellate
procedure for post-conviction relief, we dismiss this appeal.
[21] Dismissed.
Bailey, J., and Bradford, J., concur.
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