Dodd v. Indiana Department of Corrections et al, No. 3:2021cv00029 - Document 21 (N.D. Ind. 2022)
Court Description: OPINION AND ORDER DISMISSING this case pursuant to 28 U.S.C. § 1915A for failure to state a claim. The Clerk is DIRECTED to attach a copy of Jermaine DShann Dodds Petition for Permission to File Successive Verified Petition for Post-Conviction Relief and Petition for Rehearing to this order. Signed by Judge Robert L Miller, Jr on 3/16/22. (Attachments: # 1 Petition for Permission, # 2 Petition for Rehearing)(mlc)
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Dodd v. Indiana Department of Corrections et al Doc. 21 Att. 2 f}. V‘- n 7 ’p’ ‘~ IN “ k. THE m :w‘}: h-u'mw’ OCT ' ' - COURT 0F APPEALS OFINDIANA ~ \V (Egg; GREGORY R PACHMAyR CLERK OF COURTS 5TAE0“”“"’*"“ _ Appellate Cause No. JERMAINE D’SHANN DODD, Petitioning for Rehearing from the Court of Appeals of Indiana Court 0f Appeals Cause No. 18A-SP-954 , Petitioner I Chief Honorable Judge, Nancy Harris Vaidik v. VVVVVVVVV STATE OF INDIANA, Lower Cause N0. 45002—981 1-CF-211 The Honorable CLARENCE D. MURRAY, Respondent Judge. I PETITION FOR REHEARING Jermaine D’Shann Dodd #1 12883 Indiana State Prison 1 Park Row Michigan City, IN 46360 A—swL . FET/ITIUMW ‘PKO 5f: POSTMARKED ON: SC NNED SEP 1 7 2818 eaacozv a c:cwx-‘g CLERKOFcows-su': c: Dockets.Justia.com Jermaine D‘Shann Dodd‘s Petition For Rehearing TABLE OF CONTENTS Table of Authorities ......................................................................................................................... 3 Statement of the Issues ..................................................................................................................... 5 I. is Rehearing appropriate when a the petitioner’s trial court lack subject matter jurisdiction by disposing Dodd’s judgment of conviction and sentence violating the petitioner's fourteenth and fth amendment’s of the United States Constitution and the Constitution of the State of Indiana article Argument II. A 1., Sec. 12 ......................................................................................................................................... factual component establishes lack’s subject matter jurisdiction that Dodd has a meritorious claim by disposing the petitioner's when a trial court judgment of conviction and sentence violating the petitioner‘s rights under the Fifth and Fourteenth Amendment’s of the United States Constitution and the Constitution of the State of Indiana Article Sec.]2. ,,, the conviction and sentence is 6 unconstitutional the judgment 1., was rendered without jurisdiction and that the sentenced imposed was not authorized by law and is otherwise open to collateral attack Conclusion ..................................................................................................................................... Word Count 15 Certi cate ....................................................................................... 1 5 Certi cate of Service ..................................................................................................................... 1 5 Jermaine D’Shann Dodd Petition For Rehearing TABLE OF AUTHORITIES Page Number Authority Alexander v. Arizona Fulminate, 499 U.S. 279, 310, 113 L.E.2d 302, 111 S.Ct. 1246 (1991) Baker v. LA., 405 U.S. 625, 633 (1972) v. State, 948 N.E.2d l ................................................................................ ..................... 13 ................................................... 13 ..................................................................... 10 169, 1178-1 I79 (Ind. App. 201 1) Behme v. Behme Brindle v. Anglin, (1973), 156 Ind. App. 219, 295 N.E.2d 860 Darby Dier v. State, v. State, (1988), ind. App. 519 N.E.2d 578 514 N.E.2d 1049, 1054 524 N.E.2d 789 D.L.M., 438 N.E.2d Gomez v. Grif n v. State, Hopper v. state, V. State, Timberlake (7!“ Cir. 957 N.E.2d 61 3 Matthews (Ind. (ind. 2002) 201 849 N.E.2d 578, 587 V. State, v. State, 1) 8, 9 ................................................................................ 14 ............................................................................... 14 156 (Ind. Ct. App. 2003). 1 (1nd. ........................................... .................................................................. 2006) 808 N.E.2d 652, 659 Indiana Post-conviction relief Rule 1., 2004 8 ................................................................ 8 .......................................................................... 7 .................................................................................... Section 1., 6 ................................. (Ind. 1993). 1nd. 8 12 .......................................................... (1991), Ind., 581 N.E.2d 941 Trans. Denied. 619 N.E.2d 915, 917 Amendment, United 10 11 (Ind. 2006). U.S. v. Cotton, 535 U.S. 625, 630 (2002). Fifth 9 ............................................................................ 858 N.E,.2d 625, 630-631 Bank and Trust Co. Weatherford ..................................................................... .................................................................................. 2003) Kondauri, 799 N.E.2d 1153, v. State, ...................................................... ............................................................................................................ 8 763 N.E.2d 450 v. Williams 1028 (Ind. 1989) Jaimet, 350 F.3d 673 Kondauri Lafayette at 1987) (Ind. 10 (a)(l.), (2), (4) and (6) 11 ..................................... 6 States Constitution ..................................................................... 2, 10, 11 ., J Jermaine D’Shann Dodd Petition For Rehearing Fourteenth Amendment, United States Constitution ..................................................... 2, 5, 6, LC. § 35-34-2—12 7, 12 ....................................................................................................................... 2, 10 Jermaine D’Shann Dodd Petition For Rehearing PETITIONER’S PETITION FOR REHEARING Comes now petitioner, Jermaine D’Shann Dodd, ProSe, and pursuant to Indiana Appellate Rule 54(a)(4), Petition’s this Court to Grant rehearing of it’s June 15, 201 8, order declining authorization t0 le successive petition for Post-Conviction Relief entered in the above-styled petition. STATEMENT OF THE ISSUES Is rehearing apprOpriate petitioner’s Fourteenth when a trial court lack subj ect matter jurisdiction by disposing the Dodd’s judgment of conviction and sentence Violating the Amendment’s of the United Indiana Anicle 1., Section 12. petitioner’s Fifth and States Constitution and the Constitution of the State of Jermaine D’Shann Dodd Petition For Rehearing ARGUMENT I. A factual component establishes that lack’s subj ect matter jurisdiction Dodd has a meritorious claim by disposing the Petitioner’s when trial court judgment 0f conviction and sentence violating the Petitioner’s rights under the fth and fourteenth Amendments of the United States Constitution and the Constitution 0f the State of Indiana Article Section 12, the conviction and sentence is unconstitutional, the 1., judgment was rendered without jurisdiction and that sentence imposed was not authorized by law and is otherwise open to collateral attack. To qualify for a rehearing Petitioner on a Successive Petition for Post—conviction Relief, a must show what he has a meritorious claim t0 relief. Indiana Post-conviction relief Rule (1) that the conviction or the sentence was 1., Section in Violation United States or the constitution or laws of this (2) that the court was without jurisdiction (4) that there exists evidence that requires vacation of material to may reasonable that 1., (a)(l .), (2), (4) entitle and him (6). of the Constitution of the state; impose sentence; facts, not previously presented and heard, of the conviction or sentence in the interest ofjustice; (6) that the conviction or sentence is otherwise subj ect to collateral attack ground of alleged error heretofore available under common and upon any law, statutory or other Writ, Motion, petition, proceeding, or remedy; may institute at anytime a proceeding under The claim must never have been successive petition. Timberlake v. State, litigated, this Rule to secure relief. otherwise there 858 N.E.2d 625, 630—631 6 is no opportunity for a (Ind. 2006). as explained by Jermaine D‘Shann Dodd Petition For Rehearing the Indiana Supreme Court in Williams v. State, 808 N.E.2d 652, 659 Ind. 2004: Post-conviction procedures do not afford a petition with a “Super—appeal”. Rather, subsequent collateral challenges must be based on grounds enumerated in P.C. Rule raised, it is 1. if an issue was known and available on direct appeal, but not procedurally defaulted as a basis for relief in subsequent proceedings. 1f an issue Judicata. If the issue is was not raised assistance 0f trial counsel is on appeal, but decided adversely, it is Res on direct appeal, a claim of ineffective raised properly presented in post-conviction proceedings, but as a general, most free-standing claims of error are not available in a Postconviction proceeding because of the doctrines 0f waiver and Res Judicata. (citations omitted). Petitioner trial Dodd explains that Honorable Judge Clarence D. Murray judge 0f the Superior Murder on June Coun of Lake County 0f the 15, 2001. (Trial Court's order 15, 2001, App. P conviction and sentence which were entered into the record under cause CF-00021 on July Dated July 18, 18, 2001 are void and/or void ab 2001, App. Dodd committed p. 3) at the the crimes of Cause Trial Court's Probable initio. (See; Trial It is 0021 1. 1 number 45G02-981 1-CF-00021 on November Cause Order Dated November 7, 1998 App. p. 6). 7, The Indiana 1998. (see Circuit Number #45G02- 1. clear that the Lake County Superior Court Criminal division said judgments of conviction and sentenced 00211 are void and/or void ab fourteenth 1- time that the State of Indiana alleged that the petitioner did not have jurisdiction over the subject matter of Cause The The judgment of Court's Sentencing Order court which entered the judgments of conviction and sentence in Cause CF-0021 2). convicted of number 45G02-981 Court had original jurisdiction over such crimes as contained within Cause 981 1-CF-0021 the Petitioner Dodd was State of Indiana. Dated June was initio in Room (2), the same Number 45G02—981 1- Number 45G02-981 1-CF- Cause Number 45G02-981 l-CF- and violates the petitioner’s rights under the fth and amendments of the United States constitution and 7 it also violates the Constitution of Jermaine D'Shann Dodd Petition For Rehearing the State of Indiana, Article 1., Section (1 2). Lack of subject matter jurisdiction renders void any action undertaken by the Court because the defect is not susceptible to waive or cure. When couns and may be attacked jurisdiction, their actions are void ab initio at lack subject matter any time. Kondauri v. Kondauri, 799 N.E.2d 1153. 1156 (Ind. Ct. ADD. 2003). Petitioner’s Dodd’s case that the petitioner’s case has status does-not state been disposed establish to qualify for a rehearing petitioner must Though, on a successive establish his claims 619 N.E.2d 915. 917 of. pending les nor decided les; but states to obtain post-conviction relief or to petition for Post-conviction Relief, a by a preponderance of the evidence. Weatherford v. State, (Ind. 1993). Dodd’s judgments of conviction and sentence is “M”, that which is “void” has no legal effect at any time and can-not be con rmed or rati ed by subsequent action or inaction. That which “voidable” has legal effect until such time as challenged in the appropriate manner and is can be rati ed or con rmed by subsequent action or inaction. Lafayette Bank and Trust C0. ( 1991), Ind.. 581 N.E.2d 941 Trans. Denied. may A judgment (or appealable order) that is voidable only be attacked through a direct appeal. D.L.M.. 438 N.E.2d judgment is at 1028. whereas a void subject to collateral attack. Trook. 581 N.E.2d at 944. “at any time, and that time is now. Likewise, relying on Dier trial court had no jurisdiction v. State. t0 dispose 524 N.E.2d 789 (Ind. 1989), Dodd explains that the of his judgment of conviction and sentence and then transferred Jurisdiction to the Indiana Department of Correction. Jermaine D'Shann Dodd Petition For Rehearing 1n Dier, the trial court originally sentenced Dier t0 an aggregated term of 154 yeas. Dier entered into an agreement with the State whereby he agreed to testify against trial court upon Motion of the State, re—sentenced his cooperation as a witness against Dier to an aggregate term 0f 30 years based on Thomas. Dier subsequently recanted post-conviction relief action led by Thomas. Ben Thomas. The On motion by the his trial testimony in a state, the trial Dier’s re-sentencing of 3O years and then reinstated his 154-year sentence. coun vacated Our Supreme Court reversed the Trial Court’s decision and stated in part as follows: “with very little exception, a trial judge has not authority over a defendant after he pronounces sentence. The jurisdiction over the defendant goes to the Department of Correction there almost ve years after is no authority for a trial court to reopen a sentencing imposition and at the instance of the State to change it’s that sentence as the trial court did here.” On September 28, Corrections one page — Miami letter to 201 7, Petitioner wrote a one page letter to the Indiana correctional facility- of ce of offender records I.D.O.C. Dated September 28, 201 7, App. Department 0f & Division; (See; Petitioner p. 7), for such false information to be expunged from the petitioner’s prison le and record cause number and Case 45G02—981 CF-0021 1. The Indiana Department of Correction of Miami Correctional Facility declined 1- on such a request. Petitioner it’s Ind. Dodd ask this speci c question, “Is the judgment void?” a judgment void on face can be attacked any time, either collaterally or directly. Brindle v. Anglin. App. 219. 295 N.e.2d 860. Petitioner Dodd’s entire case was diSposed ( 1973). 156 of; there are in general (3) three jurisdictional elements in every valid judgment, namely jurisdiction of the subj ect matter, jurisdiction 0f the person, and the power or authority judgment, of the (3) three, only judgments for which the 9 trial t0 render the particular court lacks subject matter Jermaine D’Shann Dodd Petition For Rehearing jurisdiction are void. (see; The is Behme v. Behme relevant inquiry in a determination of whether a court has subject matter jurisdiction whether the type 0f claim advanced Amendment of the In the fth shall Behme be held t0 answer for a subject for the when any criminal case to to Behme. 519 N.e.2d capital, or otherwise in actual service in same offense v. Constitution of the united States presentment or indictment of a Grand jury. or in the Militia, within the general scope of authority conferred upon falls the Court by the Constitution, or statute. “No person (1988). ind. App. 519 N.e.2d 578. . ...”, at 582. guaranteed it’s that: infamous crime, unless on a a except in cases arising in the land or naval forces time 0f war or public danger nor shall any person be be twice put in jeOpardy of life or limb; nor shall be compelled in be a witness against himself, nor be deprived of life, liberty, 0r property, without due process of Law; nor shall private be taken for public use, without just compensation. To show an abuse of discretion the courts actions. indicted v. State. 514 N.E.2d 1049. 1054 upon indictment of a Grand Alexander v. LA., 405 U.S. 625. 633 state prosecutions I.C. § Darby 35-34-2-12; a defendant must demonstrate (1nd. 1987) Petitioner Jury, though petitioner never (1 waived 14‘“ the indictment requirement validity, petitioner to a Grand Jury nor has he waived nor is his rights to “Bill November Charging Information led November t Dodd never was this right. Under Amendment. Dodd never waived 7, his rights 7, 1998, bearing the 1998, App. p. these errors include claims that “the judgment of convictions and sentence jurisdiction, that the trial court that by of Information”, or charging information, the State 0f Indiana’s charging information, dated petitioner’s signature. (See; prej udiced 972); Grand jury indictment requirement inapplicable to because not incorporated against States through is how he was 8). Clearly, was rendered without determined and delivered the cn'rninal judgment dated on 10 Jermaine D’Shann Dodd Petition For Rehearing September, 2001 lacked subject matter jurisdiction resulting in a fundamental miscarriage of , justice. U.S. v. Cotton. 535 U.S. 625. 630 (2002). Now that an accused person petitioner Dodd’s Due Process is rights Due guaranteed Process, were violated and are we need to de ne it. Many of of Rights, but laid out in the Bills that’s only the beginning. 1n, 1884, the Supreme Court de ned due Process as: “Any legal proceedings enforced by public authority, whether sanctioned by age and custom, or maybe devised in the discretion of the Legislative power; in furtherance of the general public good, which regards and preserves these principles 0f liberty and justice, Due process rst is demanded must be held in the fth and Petitioner Dodd was indeed prejudiced by to be due process of law.” amendment 0f the United this violation due to the trial court clear error alone. This petitioner’ petition for rehearing in the case of Jermaine actual innocence case, important which is fat to realize that the States Constitution reserved for error’s that the conviction D’Shawn Dodd, under cause number 45g02—981 1-cf-00211 a void and/or void ab was based upon an very , which entered initio Cir. 2003), (the imprisoned. must come forward with new Gomez v. Jaimet. Fundamental Miscarriage of Justice exception applies only the “Extremely rare” and “Extraordinary case” is into the record judgment of conviction and sentenced, a mouthful of fundamental miscarriage ofjustice has occurred. crime for which he in a Superior court and same Circuit court 0f Lake County of the State of Indiana; said trial court lacked subject matter jurisdiction 350 F.3d 673 (7m and clear T0 where the in petitioner is actually innocent of the support a colorable claim 0f actual innocence the petitioner reliable evidence — whether it be exculpatory scienti c evidence, trustworthy eyewitness accounts, or critical physical evidence 1] — that was not presented at trial. Jermaine D’Shann Dodd Petition For Rehearing Petitioner asks and requests under what standard of review does this not court apply. In Indiana, several cases frame fundamental error as a due process violation: the fundamental error exception is extremely narrow, and applies only constitutes a blatant violation of basic principles, the harm or potential for when harm and the resulting error denies the defendant fundamental due process. Matthews N.E.2d 578, 587 is the error substantial, v. State. 849 (Ind. 2006). the Standard of fundamental errors , fortunately, do not require that trial counsel objected and preserved the issue for direct appeal. The mdamental error doctrine provides a vehicle for review of error not properly preserved for appeal. In order t0 be fundamental, the error must represent a blatant violation 0f basic principles rendering the trial unfair to the defendant/petitioner and thereby depriving the defendant/petitioner of fundamental due process. The error must be so prejudicial to the defendant/petitioner rights as t0 make a fair trial impossible. In considering whether a claim trial 0f issue is appropriate is a rehearing appropriate court lacked subject matter jurisdiction by disposing the petitioner’ when Dodd’s judgment 0f conviction and sentence violating the Petitioner’s rights under the fth and fourteenth Amendments of the United Article 1., sec. 12., making unconstitutional, that the States Constitution and the Constitution of the State of Indiana the Conviction and sentence void, void ad initio, and judgment was rendered without jurisdiction and imposed was not authorized by law and The 14‘“ is that the sentenced otherwise open to collateral attack: Amendment of the United states Constitution states: 12 a Jermaine D‘Shann “all Dodd Petition For Rehearing persons born or naturalized in the United States, and subject to the jurisdiction thereof, are and of the citizens of the United States any law which shall any deny t0 state wherein they shall abridge they privileges or reside. No state shall make or enforce immunities 0f citizens 0f the United States; nor deprive any person of life, liberty, or property, without due process of law; nor state any person within its jurisdiction the equal protection of the laws. The Constitution of the State of Indiana Article 1.. Section .. 12., States: all courts shall be open; and ever person, for injury done to him in his person, property or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay. In determining whether the resulting not shown by the fact that the petitioner whether the petitioner rights to a harm or potential for harm is substantial. was ultimately convicted. Rather harm fair trial was detrimentally is Harm determined by affected by the denial of procedural Opponunities for the ascertainment of truth of which he would have been entitled. Baker 948 N.e.2d 1169. 1178—1 179 (Ind. ADD. 201 1. trial is a defect affecting the (frame work) within proceeds, affecting and prej udicing petitioner Dodd’s rights, rather than simply an error in the trial process itself. Arizona v. Fulminate. S.Ct. v. State. Reh. Denied. Such review of such a standard of an error which the is 1246(1991 Petitioner 1 1 1 ). Dodd was very much County superior Court within which the and/ or void ab 499 U.S. 279. 310. 113 L.Ed.2d 302. initio, “Bill so prejudiced by the Court’s framework of the Lake Trial Proceeds in cause 45G02-981 l-CF-OOZI 1 0f void of information”, 0r “rather charging information", Petitioner Dodd Jennaine D‘Shann Dodd Petition For Rehearing petitioning that Petitioner never signed the State 0f Indiana's charging information, November 7, 1998, nor has the Petitioner signed a waiver waving petitioners rights. (See; Charging Information led November 7, 1998, App. p. Standard of Review, as outlined in Hopper Rehearing is 8). v. State, 957 N.E.2d 613 (ind. 201 1 ), a procedure through which an appellate Court can recognize and correct error’s in a proceeding ruling. Grif n v. State, 763 N.E.2d 450 In to consider t0 qualify for a rehearing Relief, a petitioner petitioner Dated Dodd (1nd. 2002). on a Successive Petition for Post-Conviction must show what he has a meritorious claim to relief. Petitioner Dodd now that may reasonable entitle object’s t0 the Indiana Court of Appeals order entered and dated on June 15, 201 8, declining authorization to le a successive petition for Post Conviction relief, in Mr. Dodd’s declining of authorization, the Indiana court of Appeals stated that the petitioner has failed to establish a reasonable possibility that the petitioner is entitled to post-conviction relief, and the court declines t0 authorize the ling of the petition. Petitioner Dodd objection should be consider and recognized. Now at this, the, the petitioner request’s a hearing considering thereafter the petitioner’s petition for rehearing get’s granted. Wherefore, the petitioner asks this honorable Court of Appeals for a fair proceeding to be recognized, or at least reviewed under a “preponderance standard”. Post-Conviction Rule 1 § 5 provides that: the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Which the petitioner states that the evidence the face of the record.” whereas a “void” N.E.2d at judgment 944. 14 is is on the record,” subject to collateral attack. Trook. 581 Jermaine D'Shann Dodd Petition For Rehearing CONCLUSION For the reasons stated herein petitioner requests the court to grant rehearing and to vacate and set-aside it’s [decision/order] of June 15, 201 8, and for all other just and proper relief WORD COUNT CERTIFICATE I and "I verify that this Petition For Rehearing contains no more than 4,200 applicable words," verify that this Petition For Rehearing contains 2,8] 5 (actual Executed on this number) words. izgiay 0f September, 201 8. Respectfully Submitted, JA J ' x. ' 1 9 rmaine D’Sh CERTIFICATE OF SERVICE . . I hereby certlfy that I have, thls above and foregoing PETITION to 1nd. Appellate Rule 24(C)(2), by deposit Attorney General 0f Indiana Gov. Center S., 5‘" Floor 302 West Washington St. Indianapolis, IN 46204-2770 Ind. Jermaine D’Shann Dodd Indiana State Prison Park Row Michigan City, IN 46360 A - 5w / day 0f September, 20] 8, served a copy of the FOR REHEARING addressed as indicated: 1 /5 #1 12883 in the on the individual indicated below. pursuant United States mail, rst class postage af xed,
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