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7th Circuit judge grants prisoner’s request for certificate of appealability

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An Indiana prisoner’s request for a certificate of appealability has been granted by a 7th Circuit judge who found the man’s application set forth a substantial showing of the denial of a constitutional right.

Prisoner Joshua Resendez sought habeas corpus in the U.S. District Court for the Southern District of Indiana, but his petition and subsequent request for a certificate of appealability were denied by Judge Sarah Evans Barker. In a five-page order issued from Judge Kenneth Ripple’s chambers, the federal appellate judge said he granted Resendez’s application because his petition presents a question concerning a defendant’s constitutional right to counsel under Indiana Code 35-38-1-15 that has not yet been settled by the 7th Circuit Court of Appeals.

The record is sparse in Resendez’s case, Joshua Resendez v. Wendy Knight, No. 11-1121. While in prison on robbery and forgery convictions, he filed a belated motion to correct erroneous sentence. The trial court denied the motion, so Resendez asked for an appointed attorney to help him appeal. That request was also denied, and the Indiana Court of Appeals dismissed his appeal with prejudice.

Resendez then asked for federal habeas corpus relief, claiming the state courts denied him counsel in violation of the federal constitution. The District Court denied his request, believing he was asserting a right to counsel in a state post-conviction proceeding.

Judge Ripple pointed out that a certificate of appealability may be issued only if the applicant has made a substantial showing of the denial of a constitutional right. The judge then discussed whether a motion brought under I.C. 35-38-1-15 qualifies as a direct or collateral proceeding.

“Whether the procedure is characterized correctly as direct or collateral presents an antecedent non-constitutional question. A certificate of appealability still can be granted on this question, however, because Mr. Resendez’s petition raises a substantial constitutional issue, namely the right to counsel,” he wrote. “Because this court has not previously determined how a motion brought under section 35-38-1-15 should be characterized, and because, given the factors this court considers, reasonable jurists could differ on whether this proceeding should be considered direct or collateral, Mr. Resendez’s application sets forth a substantial showing of the denial of a constitutional right. I express no view on the correct resolution of the question presented.”

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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