Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.)

Indiana Court of Appeals

Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.)

DecidedJune 29, 2016

Docket77A05-1603-MI-588

StatusPublished

This text of Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.) (Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.)) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.), (Ind. Ct. App. 2016).

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Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016 Page 1 of 8 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).

Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016 Page 2 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016 Page 3 of 8 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).

Court of Appeals of Indiana | Memorandum Decision 77A05-1603-MI-588 | June 29, 2016 Page 4 of 8 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).

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