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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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