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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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