MEMORANDUM DECISION
Case Summary and Issue
[1] Michael Hickingbottom, pro se, filed a complaint against Lake County Public Defender Mark Bates in his official capacity and the Lake County Appellate Public Defender Division.
1
However, the trial court dismissed Hickingbottoms complaint for failure to state a claim upon which relief could be granted. Hickingbottom now appeals, raising several issues for our review, of which we find the following restated issue dispositive: whether the trial court erred by dismissing Hickingbottoms complaint for failure to state a claim on which relief can be granted.
2
Concluding the dismissal was proper, we affirm.
Facts and Procedural History
[2] On October 15, 2004, Hickingbottom was convicted of murder following a jury trial at which he was represented by Lake County Public Defender Teresa Hollandsworth. On direct appeal Hickingbottom was represented by Lake County Public Defender Bates, who raised issues related to admission of evidence, evidence of sudden heat, and Hickingbottoms sentence. A panel of this court affirmed his conviction, Hickingbottom v. State, No. 45A03-0502-CR-77 (Ind. Ct. App. Feb. 8, 2006), trans. denied, and on April 19, 2006, our supreme court denied Hickingbottoms petition to transfer, see Appellees Appendix, Volume 2 at 14. Subsequently, Hickingbottom, pro se, filed a petition for post-conviction relief alleging that he received ineffective assistance of trial counsel. The post-conviction court denied Hickingbottoms petition, and this court affirmed. Hickingbottom v. State, No. 45A05-0705-PC-243 (Ind. Ct. App. July 11, 2008), trans. denied.
[3] On December 10, 2019, Hickingbottom filed a 42 U.S. Code section 1983 (“Section 1983”) complaint alleging that Bates, in his official capacity, and the Appellate Public Defender Division violated his Sixth, Eighth, and Fourteenth Amendment rights. Specifically, he alleged his right to a “full and fair direct appeal” was “doomed/sabotaged” because Bates failed to raise ineffective assistance of trial counsel on direct appeal due to an Appellate Public Defender Division policy precluding public defenders from asserting such claims when trial counsel was also a Lake County Public Defender. Appellants Appellate Brief at 7. Subsequently, Bates and the Appellate Public Defenders Division filed a Joint Motion to Dismiss. On April 15, 2020, the trial court granted the joint motion, finding that claims against Bates and the Lake County Appellate Public Defenders Division were barred by the statute of limitations. Hickingbottom now appeals.
Discussion and Decision
I. Standard of Review
[4] We review a trial courts ruling on a Trial Rule 12(B)(6) motion using a de novo standard. Lei Shi v. Cecilia Yi, 921 N.E.2d 31, 36 (Ind. Ct. App. 2010). This means that we give no deference to the trial courts decision. Id. We consider the complaint and reasonable inferences therefrom in the light most favorable to plaintiff. Id. at 37. We stand in the shoes of the trial court and must determine if the trial court erred in its application of the law. Godby v. Whitehead, 837 N.E.2d 146, 149 (Ind. Ct. App. 2005), trans. denied. The trial courts grant of a motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. In making this determination, we look only to the complaint and may not resort to any other evidence in the record. Id.
II. Failure to State a Claim
[5] Hickingbottom argues that the trial courts dismissal of his complaint “on the grounds of a statute of limitation violation was an abuse of discretion[.]” Appellants Br. at 9. A motion to dismiss for failure to state a claim on which relief may be granted may be an appropriate means of raising the statute of limitations. Matter of Carrolls Estate, 436 N.E.2d 864, 865 (Ind. Ct. App. 1982). When the complaint shows on its face that the statute of limitations has run, the defendant may file a Trial Rule 12(B)(6) motion. Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986).
[6] Hickingbottom alleged that due to a conflict of interest, Bates could not raise a claim of ineffective assistance of trial counsel on direct appeal and that this violated his Fourteenth, Eighth, and Sixth Amendment rights. Claims brought in Indiana under Section 1983 are subject to Indianas two-year statute of limitations for personal injury actions. See Delacruz v. Wittig, 42 N.E.3d 557, 559 (Ind. Ct. App. 2015), trans. denied; Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 894 (7th Cir. 2001) (“Indianas two-year statute of limitations ․ is applicable to all causes of action brought in Indiana under 42 U.S.C. § 1983.”).
[7] Although Indiana law determines the applicable statute of limitations, federal law determines when a Section 1983 claim accrues. Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). The statute of limitations on a Section 1983 claim begins to run when “the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (quoting Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)).
[8] Hickingbottom argues that the statute of limitations on his claim did not begin to run until February 21, 2019, because that is when he discovered his alleged injury. Hickingbottoms complaint alleges that on that date, he received a letter from Chief Public Defender Marce Gonzales, Jr. stating, “Bates could not ethically (because of a conflict of interest created by both working for the same office) raise the issue of Ineffective Assistance of Counsel as a challenge to [trial counsels] representation of you.” Appellants Br. at 9. Because we accept as true facts alleged in the complaint when reviewing a Trial Rule 12(B)(6) motion to dismiss, we accept Hickingbottoms allegations as to the timeline for purposes of the statute of limitations. Hickingbottom did not discover any alleged injury until February 21, 2019, and therefore filed his Section 1983 claim within the two-year window. Snodderly, 239 F.3d at 894.
[9] However, we may affirm on any basis in the record, Ward v. Carter, 90 N.E.3d 660, 662 (Ind. 2018), cert. denied, 139 S.Ct. 240 (2018), and in reviewing Hickingbottoms complaint de novo we conclude that he fails to state any facts that would support a claim for Section 1983 relief. Under Section 1983, a government official who, while acting under color of state law, deprives an individual of constitutionally protected rights may be subject to personal liability for civil damages. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995). Hickingbottom is required to show: (1) a deprivation of a federally protected right; and (2) the defendants conduct caused the deprivation. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). Hickingbottom claims that he was deprived of his right to a full and fair direct appeal. See Appellants Br. at 14. We disagree.
[10] Bates’ failure to raise ineffective assistance of trial counsel on direct appeal did not deprive Hickingbottom of any rights because if not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a post-conviction proceeding. Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). And Hickingbottom did in fact file a petition for post-conviction relief claiming ineffective assistance of trial counsel, which was denied, and the denial was affirmed by this court in 2008. See Hickingbottom v. State, No. 45A05-0705-PC-243 at *1 (Ind. Ct. App. July 11, 2008). Further, a defendant who chooses to raise a claim of ineffective assistance of trial counsel on direct appeal is foreclosed from relitigating that claim. Woods, 701 N.E.2d at 1220. The defendant is even precluded from alleging different grounds of ineffective assistance on post-conviction relief after raising the issue on direct appeal. Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984) (“Notwithstanding the fact that petitioner gave several additional examples of his counsels alleged ineffectiveness during the post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal.”). Therefore, this court generally cautions against raising ineffective assistance of trial counsel on direct appeal.
[11] We conclude that, regardless of any policy of the Lake County Public Defenders Office, Hickingbottom was not deprived of his right to bring a claim of ineffective assistance of trial counsel because the claim was available to him on post-conviction relief. To the extent he alleges additional claims of ineffective assistance of trial counsel remain unraised, that is the result of his own oversight on post-conviction relief, not Bates’ failure on direct appeal. Therefore, his complaint states no facts on which he could succeed in his Section 1983 claim against Bates and the Lake County Appellate Public Defender Division.
Conclusion
[12] We conclude that Hickingbottoms complaint states no facts on which he could succeed in his Section 1983 claim; therefore, the trial court did not err in granting the motion to dismiss for failure to state a claim. Accordingly, we affirm.
[13] Affirmed.
FOOTNOTES
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. Hickingbottom also brought claims against Governor Eric Holcomb and Judge Clarence Murray; however, in his response to Murray and Holcombs joint motion to dismiss, Hickingbottom agreed that “Judge Murray possesses Judicial Immunity that Precludes Liability[,]” Brief of Appellees Judge Murray and Governor Holcomb at 5, and “Holcomb has no connection with this suit[,]” id. at 6. Further, Hickingbottom does not challenge the trial courts dismissal of his claims against Holcomb and Murray on appeal. Hickingbottom also included claims against Sheriff Oscar Martinez; however, Sheriff Martinez was dismissed without prejudice for lack of service.
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. The trial court concluded that Hickingbottoms claims against both Bates and the Appellate Public Defenders Office were duplicative. However, we need not address this because Hickingbottom fails to present facts to support a Section 1983 claim against either party.
Robb, Judge.
Bailey, J., and May, J., concur.