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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Feb 17 2009, 9:37 am
of the supreme court, court of appeals and tax court

APPELLANT PRO SE: ERIC D. SMITH New Castle, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA

ERIC D. SMITH, Appellant, vs. WILLIAM K. WILSON, Appellee.

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No. 46A04-0810-CV-631

APPEAL FROM THE LAPORTE SUPERIOR COURT The Honorable Paul J. Baldoni, Judge Cause No. 46D03-0712-MI-521

February 17, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Eric Smith appeals the dismissal of his petition for writ of habeas corpus. We affirm. Issue Smith raises one issue, which we restate as whether the trial court properly dismissed his claim on the basis that it was frivolous. Facts Smith is incarcerated, serving a twenty-year sentence for Class B felony arson. On December 3, 2007, he filed a petition for writ of habeas corpus alleging that he should be immediately released based on his accrual of educational credit time. That same day, the trial court dismissed the petition pursuant to Indiana Code Section 34-58-2-1, Indiana's Three Strikes Law. On December 20, 2007, Smith filed his notice of appeal. On March 31, 2008, the motions panel of this court ordered that Smith's appeal be dismissed. On April 9, 2008, our supreme court issued an opinion in another case filed by Smith declaring the Three Strikes Law unconstitutional. See Smith v. Indiana Dept. of Correction, 883 N.E.2d 802, 806 (Ind. 2008). On April 29, 2008, Smith petitioned for rehearing. On August 29, 2008, the motions panel granted Smith's petition for rehearing and remanded for the trial court to determine whether his petition was frivolous. On September 18, 2008, the trial court dismissed Smith's petition. In doing so, the trial court concluded, "the plaintiff's claim lacks any arguable basis in fact or law." Appellant's Br. p. 9. Smith now appeals. 2

Analysis Smith argues that his petition was improperly dismissed. Pursuant to Indiana Code Section 34-58-1-2, a trial court shall review a complaint or petition filed by an offender and determine if the claim may proceed. A claim may not proceed if the court determines the claim is frivolous. Ind. Code

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