ILNews

Man had no constitutional right to counsel

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  2. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  3. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  4. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  5. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

ADVERTISEMENT