Monday, August 20, 2012
Ind. Decisions - 7th Circuit decides one Indiana case today
In Resendez v. Smith (SD Ind., Barker), an 11-page opinion, Circuit Judge Tinder writes:
Joshua Resendez appeals the district court’s dismissal of his petition for a writ of habeas corpus, contending that the State denied him of his constitutional right to counsel in a sentence correction proceeding under Indiana Code § 35-38-1-15. At first blush, this case appears to present the question whether a § 35-38-1-15 proceeding is properly classified as a direct or collateral proceeding for federal habeas purposes. But we need not reach that question because we conclude that Resendez’s claims may not be presented via a § 35-38-1-15 motion. * * *
We conclude that Resendez’s motion to correct sentence was not a motion pursuant to Ind. Code § 35-38-1- 15 but a collateral attack on his sentence. Therefore, he had no constitutional right to counsel, see Finley, 481 U.S. at 557, and the district court did not err in denying him habeas relief. We do not reach whether a proper motion pursuant to § 35-38-1-15 qualifies as a direct or a collateral proceeding or whether there is a constitutional right to counsel in such a proceeding.
Posted by Marcia Oddi on August 20, 2012 02:34 PM
Posted to Ind. (7th Cir.) Decisions