Antwoin Richmond v. Keith Butts (mem. dec.)

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 His parole was revoked in May 2016,1 and he was ordered to serve the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

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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

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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).

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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

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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.

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