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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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