Monday, August 01, 2011
Ind. Decisions - 7th Circuit issues Indiana opinion in typescript form
Just posted by the 7th Circuit, this 5-page opinion "On Application for Certificate of Appeal" in Resendez v. Knight (SD Ind., Barker). Judge Ripple writes:
RIPPLE, Circuit Judge (in chambers). Joshua Resendez filed a petition for habeas corpus in the district court. His petition, and his subsequent request for a certificate of appealability (“COA”), was denied by the district court. Mr. Resendez has renewed his request for a COA in this court. Because Mr. Resendez’s petition presents a question concerning a defendant’s constitutional right to counsel that we have not yet settled, I grant Mr. Resendez’s application. * * *
Here, Mr. Resendez argues that, under the federal Constitution, the State was required to provide him with counsel for purposes of pursuing his motion under Indiana Code section 35-38-1-15. The operative question, therefore, is whether Mr. Resendez had a constitutional right to counsel in a proceeding under that section. * * *
We previously have not had an occasion to determine whether a motion brought pursuant to section 35-38-1-15 of the Indiana Code qualifies as a direct or collateral proceeding. Indiana courts have distinguished this proceeding from a state habeas proceeding and have recognized that it may raise sentencing errors that otherwise may be challenged through a direct appeal. See Robinson v. State, 805 N.E.2d 783, 786-87 (Ind. 2004). Similarly, they have noted that “[w]hen an error related to sentencing occurs, it is in the best interests of all concerned that it be immediately discovered and corrected.” Id. at 786. That this procedure is an alternative to direct appeal for sentencing issues and that it is designed to be brought as soon as the error is recognized both support a colorable case that the procedure should be characterized as direct for purposes of a defendant’s constitutional right to counsel.
Whether the procedure is characterized correctly as direct or collateral presents an antecedent non-constitutional question. A certificate of appealability still can be granted on this question, however, because Mr. Resendez’s petition raises a substantial constitutional issue, namely the right to counsel. See Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003) (“If there is a substantial constitutional issue, and an antecedent non-constitutional issue independently is substantial, then the certificate may include that issue as well.” (citing Slack, 529 U.S. at 484)). Because this court has not previously determined how a motion brought under section 35- 38-1-15 should be characterized,1 cf. Longworth v. Ozmint, 302 F. Supp. 2d 569, 574 (D.S.C. 2004) (listing that “the issue is very much unresolved” in support of its conclusion that a COA should issue), and because, given the factors this court considers, reasonable jurists could differ on whether this proceeding should be considered direct or collateral, Mr. Resendez’s application sets forth a substantial showing of the denial of a constitutional right. I express no view on the correct resolution of the question presented. Mr. Resendez’s application for a COA therefore is granted.
It is so ordered.
Posted by Marcia Oddi on August 1, 2011 10:50 AM
Posted to Ind. (7th Cir.) Decisions