Joshua Resendez v. Wendy Knight
2012 U.S. App. LEXIS 17422
| 7th Cir. | 2012Background
- Resendez was charged with robbery in Cause No. 220, pled guilty, and received a 10-year sentence with no direct appeal.
- While incarcerated, he pled guilty to forgery and receiving stolen property in Cause No. 43, receiving concurrent sentences, probation, and a sentence intended to run consecutively to Cause No. 220; he did not appeal.
- In 2008 he was released after serving the executed portion of Cause No. 220 and began probation for Cause No. 43 while on parole, leading to concurrent probation/parole supervision.
- A probation violation led to a four-year work-release sentence, later followed by a conviction for Failure to Return to Lawful Detention and a 180-day prison term.
- In 2009 Resendez filed a pro se motion to correct erroneous sentence under Ind. Code § 35-38-1-15 asserting simultaneous probation/parole and other issues; it was denied.
- Resendez then pursued federal habeas relief, arguing denial of counsel in the § 35-38-1-15 proceeding; the district court dismissed, the Seventh Circuit granted a COA, and the district court’s dismissal was reviewed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to counsel in § 35-38-1-15 motion | Resendez asserts a right to counsel for the motion. | Smith contends no counsel right in collateral proceedings. | No right to counsel; proceeding is collateral. |
| Whether the motion is direct or collateral for habeas | Motion is an alternative to direct appeal; should be direct or non-collateral. | Motion is collateral and not a direct challenge. | Motion is collateral; not cognizable for habeas relief. |
| Facially apparent sentencing error under § 35-38-1-15 | Claims are facial errors on the judgment. | Errors require review beyond the face of the judgment. | Not facially apparent; not proper § 35-38-1-15 motion. |
| Federal habeas review of state procedures | Errors in state collateral review may support federal relief. | State collateral-review errors do not support habeas relief. | Resendez cannot obtain relief; state errors do not trigger habeas relief. |
Key Cases Cited
- Kitchen v. United States, 227 F.3d 1014 (7th Cir. 2000) (right to counsel through first appeal; no counsel beyond direct review)
- Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (no right to counsel in state discretionary or collateral review)
- Pennsylvania v. Finley, 481 U.S. 551 (U.S. 1987) (no right to counsel in state collateral proceedings after exhaustion)
- Robinson v. State, 805 N.E.2d 783 (Ind. 2004) (motions to correct error must facially appear; broader claims not allowed)
- Neff v. State, 888 N.E.2d 1249 (Ind. 2008) (motion to correct erroneous sentence limited to facial judgments)
- Davis v. State, 937 N.E.2d 8 (Ind. Ct. App. 2010) (Robinson applied to limitations on facially apparent errors)
- Huusko v. Jenkins, 556 F.3d 633 (7th Cir. 2009) (federal classification of state proceedings for § 2254 purposes)
- Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (unreasonable application standard in AEDPA)
- McCarthy v. Pollard, 656 F.3d 478 (7th Cir. 2011) (AEDPA standard and application to procedural claims)