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Man had no constitutional right to counsel

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The 7th Circuit Court of Appeals rejected a man’s claims in support of his petition for a writ of habeas corpus, finding his motion to correct sentence wasn’t a motion pursuant to Indiana Code, but was a collateral attack on his sentence.

U.S. District Judge Sarah Evans Barker in the Indianapolis Division of the Southern District of Indiana dismissed Joshua Resendez’s petition. She ruled the claim was not cognizable in habeas corpus because Resendez was asserting his right to counsel in making a collateral challenge to his conviction in state courts.

Resendez pleaded guilty to robbery in 2002, and while in prison, pleaded guilty to forgery and receiving stolen property in another case. His sentences were ordered to run consecutively; he did not appeal his conviction or sentence in either case. When released, he began serving probation while serving parole. He violated terms of his probation and eventually was ordered to serve the remainder of his sentence in prison.

After his pro se motions in state court to correct sentence were denied, as well as his request for assistance of counsel, he sought relief in federal court.

Judge John Tinder noted at first blush, Resendez’s case appears to present the question whether a I.C. 35-38-1-15 is properly classified as a direct or collateral proceeding for federal habeas purposes, but the 7th Circuit didn’t need to answer that question because it found his claims may not be presented via a motion under that statute.

A motion to correct sentence pursuant to I.C. 35-38-1-15 may only be filed to address a sentence that is “erroneous on its face,” Tinder wrote. Other sentencing errors have to be addressed via direct appeal or post-conviction relief, and the Indiana Supreme Court held that “claims that require consideration of the proceedings before, during or after trial may not be presented by way of a motion to correct sentence.”

The alleged sentencing error in this case is not clear from the face of the judgment, so his sentencing challenge may only be raised on direct appeal or in post-conviction proceedings, the court held.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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