Eric D. Smith v. Keith Butts ( 2014 )

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MEMORANDUM DECISION – NOT FOR PUBLICATION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.
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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
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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.
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