Eric D. Smith v. Keith Butts ( 2014 )


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  • Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be
    regarded as precedent or cited before any                 Sep 12 2014, 10:22 am
    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:
    ERIC D. SMITH                                   GREGORY F. ZOELLER
    Greencastle, Indiana                            Attorney General of Indiana
    KYLE HUNTER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    ERIC D. SMITH,                                  )
    )
    Appellant-Petitioner,                    )
    )
    vs.                               )        No. 33A01-1402-MI-87
    )
    KEITH BUTTS,                                    )
    )
    Appellee-Respondent.                     )
    APPEAL FROM THE HENRY CIRCUIT COURT
    The Honorable Kit C. Dean Crane, Judge
    Cause No. 33C02-1310-MI-109
    September 12, 2014
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    BAKER, Judge
    Eric Smith appeals the trial court’s denial of his Motion for Relief from Judgment
    and Petition for Reading of Decision.
    On September 26, 2001, Smith was found guilty of arson and sentenced to twenty
    years. His conviction was affirmed on appeal. Smith v. State, Cause No. 49A04-0201-
    CR-31 (Ind. Ct. App. November 19, 2002). Since that time, Smith has filed several
    successive petitions for post-conviction relief. In 2007, Smith was ordered to seek leave
    from this Court before filing any further appeals arising from his arson conviction. Smith
    v. State, No. 49A04-0706-CR-325, order (Ind. Ct. App. Dec. 19, 2007). On October 23,
    2013, Smith filed a Verified Petition for State Writ of Habeas Corpus, the denial of which
    is the subject of this appeal. In his petition, Smith argues that he has been denied two and
    a half years of educational time credits, which, if received, would free him from prison.
    Smith argues that the trial court erred when it denied him relief because it
    classified his petition as an unapproved successive petition for post-conviction remedies.
    He maintains that, because his credit time would free him from prison, he properly filed a
    petition for habeas corpus. Smith is correct that a habeas corpus action may arise from the
    denial of educational credit time. Kindred v. State, 
    771 N.E.2d 760
    , 763 n.1 (Ind. Ct.
    App. 2002). Further, this appeal does not strictly arise out his arson conviction, as it
    concerns the way the Indiana Department of Correction (DOC) must give credit time;
    therefore, it may not have been barred by the December 2007 order requiring Smith to
    seek leave from this Court.
    2
    This Court has previously noted that Smith “has a penchant for dressing old
    arguments in new clothes, and then pressing them forward again.” Smith v. State, No.
    49A04-0706-CR-325, order (Ind. Ct. App. Dec. 19, 2007); see Parks v. Madison County,
    
    783 N.E.2d 711
    , 722 (Ind. Ct. App. 2002). This case is no exception. On December 27,
    2012, a panel of this Court handed down a memorandum decision addressing Smith’s
    allegation that someone had altered his records to make it appear that he had not earned
    educational credit time. Finding that Smith had failed to show that he had exhausted his
    administrative resources, we determined that the issues raised in Smith’s appeal were
    frivolous, repetitive, or clearly defaulted. Smith v. State, 
    980 N.E.2d 447
    (Ind. Ct. App.
    2012).
    Now Smith, in the guise of a new habeas corpus appeal, argues substantially the
    same issues we determined in December 2012. He argues that he should have received
    educational credits, and that he is being wrongly denied educational time. He provides
    some new documents that show he has submitted some type of complaint to the grievance
    coordinator at the DOC. Appellant’s App. p. 31. Also attached is a “petition for
    restoration of time,” which shows that Smith did petition for restoration of his credit time,
    but was denied by the DOC because his petition was premature; the document is dated
    May 6, 2013. 
    Id. at 41.
    As Smith does not show that he took any further action and does
    not, in the first place, show us what the relevant DOC administrative grievance
    procedures are, we cannot find that he has exhausted them at all levels. See Young v.
    State, 
    888 N.E.2d 1255
    , 1257 (Ind. Ct. App. 2008) (holding that an inmate seeking
    3
    educational credit time from a court “must show in the first place what the relevant DOC
    administrative grievance procedures are, and then that he has exhausted them at all
    levels”). We may affirm the trial court on any theory supported by the record, Amaya v.
    Brater, 
    981 N.E.2d 1235
    , 1239 (Ind. Ct. App. 2013), and we find that the case was
    correctly dismissed, as Smith has not shown that he has exhausted all administrative
    procedures.
    Dismissed. Order to follow.
    KIRSCH, J., and ROBB, J., concur.
    4
    

Document Info

Docket Number: 33A01-1402-MI-87

Filed Date: 9/12/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021