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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