FOR PUBLICATION
APPELLANT PRO SE:
LARRIANTE SUMBRY
Michigan City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRIANTE SUMBRY, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A04-0402-CV-98
)
In the Matter of: MISC. DOCKET SHEET FOR )
THE YEAR 2003, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D02-0301-MI-1
July 7, 2004
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Larriante Jalapeno Sumbry (Sumbry), appeals the trial court’s rejection of his attempt
to file a Petition for Writ of Habeas Corpus.
We affirm.
ISSUE
We restate the contentions Sumbry raises on appeal as whether the trial court
abused its discretion in rejecting his effort to file a Petition for Writ
of Habeas Corpus.
FACTS AND PROCEDURAL HISTORY
The hodge-podge of information delivered to us by Sumbry is so incomprehensible that
it is difficult to know where to begin. It includes motions filed
by Sumbry, correspondence with various attorneys and legal organizations, as well as trial
court orders from multiple causes of action in apparently random order.
See footnote
We derive the best description of the nature of this case from an
Order of the judge of the Lake Superior Court, Civil Division, issued on
September 22, 2003, in response to Sumbry’s Petition for Leave to File and
Proceed as an Indigent. In its Order, the trial court first notes
that the instant litigation originates from Sumbry’s convictions and sentencings pursuant to plea
agreements entered into in November of 1998 in cases identified by Cause No.
45G03-9605-CF-84 and Cause No. 45G03-9605-CF-90. Since that time, Sumbry’s direct appeals and
post-conviction petitions regarding his convictions for these 1996-arrests have been resolved against him.
Nevertheless, in April of 2001, Sumbry filed a civil lawsuit in the Lake
Superior Court, Civil Division, against the judges and magistrates who presided in his
criminal cases, his public defender, the Lake County prosecutor and deputy prosecutor who
prosecuted his cases, and other officials and employees of Lake County. All
of those claims were dismissed by June 24, 2002. However, since that
time, Sumbry has been allowed to file nine additional lawsuits as an indigent
plaintiff.
The trial court continues by addressing the instant litigation in its Order as
follows:
In the Complaint [Sumbry] has now submitted for filing
in forma pauperis to
the Clerk of this [c]ourt, [Sumbry] has named as Defendants, Cecil Davis, the
Governor, Attorney General, Gary Police Department, Lake County Police Department, Lake County Prosecutor’s
Office, City of Hammond Law Department, Lake County Public Defenders’ Office, Lake County
Probation Office, Public Defender of Indiana, Lake County Judges, Lake County Clerk’s Office,
and Lake County Magistrates. [Sumbry] requests a Writ of Habeas Corpus be
issued alleging, in conclusory fashion, that he is illegally imprisoned because of technical
and procedural deficiencies in the previous arrests which led to convictions previously referred
above and upon which he is currently serving his sentence.
The course of all this litigation undertaken by [Sumbry] evidences his proclivity to
file suit against those in the judicial system and government, including prosecutors, defenders
and court staff, who had previously been involved in his cases. The
convictions under which he is now serving time have been resolved against [Sumbry]
as have his appeals and post-conviction relief petitions. The Chronological Case Summaries
[CCS] for these cases also demonstrate that [Sumbry] exhibits a pattern of filing
many motions and papers in the course of these proceedings, and many of
which are repetitive, and that he has disregarded prior [c]ourt Orders to refrain
from so doing. His actions in those cases, wherein his claims were
found to be without merit, have obviously taken substantial time (and continue to
take time) for review and action by the Judges assigned to his cases.
(Order of the Judge of the Lake Superior Court, Civil Division, Room 2,
dated September 22, 2003, pp. 2-3).
The trial court proceeds in its Order to compare the instant litigation with
the litigation at issue in our opinion in Parks v. State, 789 N.E.2d
40 (Ind. Ct. App. 2003), trans. denied, where we applied the screening mechanism
used in the federal court system to forestall such frivolous lawsuits. The
trial court concludes: “[a]s in Parks, [Sumbry’s] ‘propensity towards endless litigation warrants
the unusual step of establishing a screening mechanism to forestall frivolous lawsuits.’”
(Order of the Judge of the Lake Superior Court, Civil Division, Room 2,
dated September 22, 2003, p. 5, quoting Parks, 789 N.E.2 d at 49).
Accordingly, the trial court denied Sumbry’s request to file the suit in forma
pauperis and, instead, directed him to “file within thirty (30) days of this
Order a legal brief, complete with competent legal argument and citation to authority,
explaining to the court the legal basis for the claims asserted in the
proposed complaint, and demonstrating that the claims are not barred by the doctrines
of res judicata or law of the case.” Id. Furthermore, the
trial court warned, “[u]pon review of the materials, the [c]ourt shall determine whether
the proposed lawsuit is frivolous, malicious, fails to state a claim upon which
relief may be granted, or is otherwise utterly without merit. If such
is found by the [c]ourt, or if [Sumbry] does not file the required
materials within thirty (30) days, the proposed complaint shall not be filed.”
Id.
On September 29, 2003, Sumbry filed a five-page, handwritten “Affidavit in Support of
Writ” in which he essentially argues the merits of his criminal convictions in
the aforementioned cases. As a result, on January 30, 2004, the trial
court entered the following Order:
[Sumbry] on September 29, 2003, filed his Brief in response to the [c]ourt’s
Order of September 22, 2003.
Upon review of his Brief, the [c]ourt finds as follows:
1. [Sumbry’s] allegations set out in the rhetorical paragraphs of his response once again
allege claims of [Sumbry] regarding his prior convictions which were raised and adjudicated
in his previous Post-Conviction Relief Petitions. As such they fail to state
claims upon which relief can be granted.
2. Since this is not the first or second time [Sumbry] has attempted to
re-litigate these previously denied claims, this [c]ourt finds his attempt herein to re-litigate
them is at the least frivolous and at the most malicious but in
any event, under any standard of review they are utterly without merit.
The proposed Complaint against Cecil Davis is therefore not to be filed.
Any further pleadings filed with the Clerk or sought to be filed with
the Clerk are moot and are to be returned to [Sumbry].
(Order of the Judge of Lake County Superior Court, Civil Division, Room 2,
dated January 30, 2004).
Sumbry now appeals. We will supply additional facts as necessary.
DISCUSSION AND DECISION
Sumbry argues all manner of due process violations based on the trial court’s
refusal to conduct a hearing on his petition. However, the fact of
the matter is that, as the trial court notes in its Order, Sumbry
simply fails to state a claim upon which relief can be granted.
A writ of habeas corpus functions to bring the person in custody before
the court for inquiry into the cause of restraint. Partlow v. Superintendent,
Miami Correctional Facility, 756 N.E.2d 978, 980 (Ind. Ct. App. 2001). A
detainee is entitled to habeas corpus only if he is entitled to immediate
release from unlawful custody. Id. In addition, a person may not
petition a court for writ of habeas corpus to attack his conviction or
sentence. Id. The proper procedural vehicle for such a challenge to
the validity of his conviction or sentence is a petition for post-conviction relief,
rather than a petition for writ of habeas corpus. Id.
Here, Sumbry clearly attacks the validity of his convictions in his Petition for
Writ of Habeas Corpus. Although the trial court would usually automatically consider
Sumbry’s petition as one for post-conviction relief instead of for writ of habeas
corpus, Sumbry has already attempted direct appeal and post-conviction relief for the underlying
convictions. Sumbry’s convictions and sentences were upheld on appeal in both cases;
consequently, Sumbry is not entitled to a second bite at the apple.
See Harris v. Duckworth, 507 N.E.2d 1382, 1382 (Ind. 1987)(where our supreme court
held “[w]hen a prisoner is being held in a state prison, under a
commitment regular on its face, habeas corpus will not lie and the petition
for the writ should be dismissed”).
Nevertheless, instead of dismissing Sumbry’s petition outright, the trial court exercised its discretion
under Indiana Trial Rule 15(A) to allow Sumbry to amend his petition.
See T.R. 15(A)([a] party may amend his pleading once as a matter of
course at any time before a responsive pleading is served); see also United
of Omaha v. Hieber, 653 N.E.2d 83, 88 (Ind. Ct. App. 1995), reh’g
denied, trans. denied, (where the trial court sua sponte ordered the plaintiff to
replead two paragraphs of his complaint to cure an error in the original
complaint). Here, the trial court directed Sumbry to prepare a legal brief,
complete with competent legal argument and citation to authority, and to explain the
legal basis asserted in his petition. Sumbry was also directed to show
that his claims were not barred by the doctrines of res judicata or
law of the case. When Sumbry was unable to fulfill the trial
court’s directive, the trial court refused to allow Sumbry to file his proposed
petition based on our holding in Parks. We find no abuse of
discretion in the trial court’s refusal of Sumbry’s Petition for Writ of Habeas
Corpus. See Partlow, 756 N.E.2d at 980.
Moreover, realizing that this case was already on review before the issuance of
our memorandum decision in Sumbry v. Hammond Law Dep’t, et al., No. 45A04-0305-CV-257,
slip op. (Ind. Ct. App. April 19, 2004), we are inclined to reiterate
our admonishment in that case:
given Sumbry’s proclivity for continually filing frivolous and vexatious lawsuits, there will inevitably
be future meritless petitions filed by him. We therefore admonish him and
enjoin him from filing any future lawsuits arising from his 1996 arrest and
subsequent imprisonment except under the following conditions: (1) Prior to filing any such
lawsuit, Sumbry shall submit to the trial court a copy of the complaint
he wishes to file; (2) Sumbry shall also file a copy of all
of the relevant documents pertaining to the ultimate disposition of each and every
previous case instituted by Sumbry against the same defendant or emanating, directly or
indirectly, from any alleged conspiracy by public officials. This includes, but is
not limited to, the complaint, any motions to dismiss or motions for summary
judgment filed by the defendants in those actions, the trial court order announcing
disposition of the case, and any opinions issued in the case by any
appellate court; (3) Sumbry shall file a legal brief, complete with competent legal
argument and citation to authority, explaining to the court why the new action
is not subject to dismissal by application of the doctrines of res judicata,
collateral estoppel, or law of the case. If, after reviewing these materials,
the trial court determines that the proposed lawsuit is frivolous, malicious, fails to
state a claim upon which relief may be granted, or is otherwise utterly
without merit, the court shall dismiss with prejudice the proposed complaint; (4) Sumbry
is required to verify his
new complaint pursuant to Indiana Trial Rule 11(B); and (5) Sumbry is specifically
instructed to attach to such complaint a separate copy of this final section
of the instant opinion.
See footnote
Sumbry, No. 45A04-0305-CV-257, slip op. pp. 5-7.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in rejecting Sumbry’s attempt to file a Petition for Writ of
Habeas Corpus.
Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.
Footnote:
From what we can discern, at issue would appear to be
the trial court’s rejection of Sumbry’s attempt to file a Petition for Writ
of Habeas Corpus. Because the trial court declined to permit Sumbry to
file his petition, there are no respondents and, as a result, no appellees,
a fact underscored by the State Attorney General’s filing of its Notice of
Non-Involvement of the Indiana Attorney General.
Footnote:
The Indiana Legislature has recently passed a bill that provides for
the screening of inmate lawsuits. HB 1153, which will be codified at
Indiana Code chapter 34-58-1 and will become effective July 1, 2004, reads:
Chapter 1. Screening Procedure
Sec. 1. Upon receipt of a complaint or petition filed by an offender,
the court shall docket the case and take no further action until the
court has conducted the review required by section 2 of this chapter.
Sec. 2. (a) A court shall review a complaint or petition filed by
an offender and shall determine if a claim may proceed. A claim may
not proceed if the court determines that the claim:
(1) is frivolous;
(2) is not a claim upon which relief may be granted; or
(3) seeks monetary relief from a defendant who is immune from such relief.
(b) A claim is frivolous under subsection (a)(1) if
the claim:
(1) is made primarily to harass a person; or
(2) lacks an arguable basis either in:
(A) law; or
(B) fact.
Sec. 3. If a court determines that a claim may not proceed under
section 2 of this chapter, the court shall enter an order:
(1) explaining why a claim may not proceed; and
(2) stating whether there are any remaining claims in the complaint or petition that
may proceed.
Sec. 4. The clerk of the court shall send an order entered under
section 3 of this chapter to:
(1) the offender;
(2) each defendant or respondent in the action;
(3) the department of correction, if the offender is incarcerated by the department of
correction;
(4) the sheriff of the county in which the inmate is incarcerated, if the
inmate is incarcerated in a county or city jail; and
(5) the attorney general
Chapter 2. Abusive Litigation
Sec. 1. If an offender has filed at least three (3) civil actions
that a court has determined under I.C. § 34-58-1-2 to contain a claim
that:
(1) is frivolous;
(2) is not a claim upon which relief may be granted; or
(3) seeks monetary relief from a defendant who is immune from such relief;
the offender may not file a new complaint or petition unless a court
determines the offender is in immediate danger of serious bodily injury (as defined
in I.C. § 35-41-1-25).