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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.