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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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