Joshua Resendez v. Wendy Knight

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1121

JOSHUA R ESENDEZ,

Petitioner-Appellant,

v.

B RIAN S MITH,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:10-cv-01607-SEB-DML—Sarah Evans Barker, Judge.

A RGUED JUNE 4, 2012—D ECIDED A UGUST 20, 2012

Before K ANNE, W OOD , and T INDER, Circuit Judges.

T INDER, Circuit Judge. 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 correc-

tion 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

2 No. 11-1121

purposes. But we need not reach that question because

we conclude that Resendez’s claims may not be pre-

sented via a § 35-38-1-15 motion.

I.

In October 2002, Joshua Resendez was arrested and

charged with robbery in an Indiana state court (“Cause

No. 220”). He pled guilty and, on March 18, 2003, the

trial court sentenced him to ten years in prison. Because

he pled guilty, he could not directly appeal his convic-

tion. He did not appeal his sentence.

While incarcerated, Resendez pled guilty to three

counts of forgery and one count of receiving stolen

property based on conduct committed before his incar-

ceration (“Cause No. 43”). The state trial court sentenced

him to four years on the forgery counts and one and one-

half years on the other count, sentences to be concurrent;

suspended the sentence of imprisonment; and ordered

Resendez placed on probation for two years. The court

also ordered that the sentence run consecutively to the

sentence imposed in Cause No. 220. As before, Resendez

could not appeal his conviction and did not appeal

his sentence.

On February 22, 2008, after serving the executed

portion of his sentence in Cause No. 220, Resendez was

released from prison. He reported to the parole office

and was instructed to report to the probation depart-

ment so he could begin his probation in Cause No. 43.

Resendez told the probation officer that he was supposed

No. 11-1121 3

to serve his probation consecutive to the parole. None-

theless, he began serving probation while also serving

parole.

After Resendez violated the terms of his probation, the

trial court revoked the suspension of his sentence and

ordered him to serve a four-year sentence on work re-

lease. Resendez subsequently violated the conditions

of his work release and was convicted of a new offense,

Failure to Return to Lawful Detention. The court ordered

Resendez to serve the remainder of his four-year sen-

tence in prison and sentenced him to 180 days for his

failure to return to lawful detention.

On June 10, 2009, Resendez filed a pro se motion to

correct sentence, complaining that he was on probation

and parole at the same time. The motion was not

ruled upon. Then on August 27, 2009, Resendez filed a

second pro se motion titled, “defendants [sic] belated

motion to correct erroneous sentence.” The motion

stated that it was pursuant to Indiana Code § 35-38-1-15

and Indiana Trial Rule 59 (motion to correct error), and

sought correction of Resendez’s conviction and sentence

in “the above-entitled cause of action,” referring to both

Cause No. 220 and Cause No. 43. Resendez asserted that

he completed his sentence in Cause No. 220 and was no

longer on parole when the parole department in-

structed him to report to the probation department and

he began serving probation for Cause No. 43. He also

challenged the parole board’s authority to find that

he had violated the conditions of his parole in Cause

No. 220. The trial court denied the motion.

4 No. 11-1121

Resendez appealed pro se, requesting assistance of

counsel. The trial court denied the counsel request.

Because Resendez failed to comply with the Indiana

Court of Appeals’s order to file a brief and appendix,

that court dismissed the appeal. Resendez sought a writ

of mandamus in the Indiana Supreme Court; that

court dismissed his petition, concluding that it sought

an inappropriate remedy under the rules and laws gov-

erning writs.

Resendez next filed a petition for writ of habeas corpus

in the federal district court, claiming a denial of the

right to counsel in connection with his “belated motion

to correct erroneous sentence.” The court denied the

petition on preliminary review under Rule 4 of the

Rules Governing Section 2254 Proceedings in the U.S.

District Court, which allows for summary dismissal if

it “plainly appears” that the petitioner is not entitled to

relief. The court characterized Resendez’s claim as one

that the Indiana state courts “denied him assistance of

appointed counsel in challenging the trial court’s denial

of his motion to modify his sentence.” The district court

found that the claim was not cognizable in habeas

corpus because Resendez was asserting a right to counsel

in making “a collateral challenge to [his] conviction in

the Indiana state courts.” The district court also

denied a certificate of appealability (COA). This court

subsequently granted a COA, concluding that the

petition made a substantial showing of the denial of a

constitutional right: whether Resendez had a constitu-

tional right to counsel in a proceeding under Ind. Code

§ 35-38-1-15. Whether his motion under § 35-38-1-15

No. 11-1121 5

was characterized properly as a direct or collateral pro-

ceeding presented an antecedent non-constitutional ques-

tion.

II.

Resendez claims that the State denied him his constitu-

tional right to the assistance of counsel in pursuing

his motion to correct erroneous sentence under Indiana

Code § 35-38-1-15. Smith responds that the title of

Resendez’s motion notwithstanding, it was not a direct

challenge to his sentences or convictions, but a challenge

to a parole board matter regarding the administration

of his sentences and thus, not cognizable on federal

habeas review. Smith also argues that Resendez’s right

to counsel claim is procedurally defaulted. We con-

clude that even if the claim was preserved, Resendez

cannot prevail.

A petitioner is entitled to federal habeas relief only if

he demonstrates that he is in custody “in violation of

the Constitution or laws or treaties of the United States.”

McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011) (quot-

ing 28 U.S.C. § 2254(a)), cert. denied, 132 S. Ct. 1756 (2012).

We review the denial of a habeas petition de novo. Harris

v. Hardy, 680 F.3d 942, 948 (7th Cir. 2012). Under the

Antiterrorism and Effective Death Penalty Act of 1996, a

petitioner must establish that the state court’s adjudica-

tion of a claim resulted in a decision that “was contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States” or “was based on an unreason-

6 No. 11-1121

able determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d). Under the “unreasonable

application” clause, applicable here, a federal court may

grant the writ “if the state court identifies the correct

governing legal principle” from Supreme Court precedent,

Williams v. Taylor, 529 U.S. 362, 413 (2000), but “unreason-

ably refuses to extend that principle to a new context

where it should apply,” id. at 407. Resendez asserts that

the state court unreasonably refused to extend the con-

stitutional right to counsel to Indiana’s procedure

for correcting an erroneous sentence.

The district court may have erred in characterizing

Resendez’s motion as a motion to modify sentence, but

the substance of the motion, even construed liberally,

reveals that it is not a motion to correct error under Ind.

Code § 35-38-1-15, which might be considered a direct

proceeding. Resendez’s motion is a collateral chal-

lenge to—not a direct attack on—his sentence. Thus, the

district court’s assumption that the motion was col-

lateral in nature proves correct.

“[A] criminal defendant enjoys [a] right to counsel

through his first appeal of right . . . but . . . once the direct

appeal has been decided, the right to counsel no

longer applies.” Kitchen v. United States, 227 F.3d 1014, 1018

(7th Cir. 2000) (citations omitted); see also Coleman v.

Thompson, 501 U.S. 722, 756 (1991) (“a criminal defendant

has no right to counsel beyond his first appeal in

pursuing state discretionary or collateral review”); Pennsyl-

vania v. Finley, 481 U.S. 551, 557 (1987) (holding there is

no right to counsel in state collateral proceedings after

No. 11-1121 7

exhaustion of direct appellate review). The right to

counsel may attach to proceedings that substitute for a

direct appeal or occur before the conclusion of a direct

appeal. See Kitchen, 227 F.3d at 1018-19 (holding de-

fendant had a right to counsel for his pre-appeal

motion for a new trial).

Resendez asserts that a motion to correct erroneous

sentence is an alternative to a direct appeal and that

Indiana courts have repeatedly noted that proceedings

under Ind. Code § 35-38-1-15 are distinct from various

forms of post-conviction relief. See, e.g., Robinson v. State,

805 N.E.2d 783, 786 (Ind. 2004); Thompson v. State, 389

N.E.2d 274, 276 (Ind. 1979). He therefore submits that

his motion to correct erroneous sentence and subsequent

appeal were non-collateral in nature and assistance

of counsel was constitutionally required. Even assuming

that federal law would classify a § 35-38-1-15 motion

to correct sentence as a direct proceeding, see Huusko

v. Jenkins, 556 F.3d 633, 635 (7th Cir. 2009) (“Federal

law classifies a state proceeding for the purpose of § 2254.”),

Resendez cannot obtain habeas relief.

Why not? Because he conveniently overlooks a critical

point: A motion to correct sentence pursuant to Ind. Code

§ 35-38-1-15 “may only be filed to address a sentence

that is ‘erroneous on its face.’ ” Neff v. State, 888 N.E.2d

1249, 1251 (Ind. 2008) (quoting Robinson, 805 N.E.2d

at 786). “Other sentencing errors must be addressed

via direct appeal or post-conviction relief.” Id.; see also

Robinson, 805 N.E.2d at 787. The Indiana Supreme Court

has held “that a motion to correct sentence may only

8 No. 11-1121

be used to correct sentencing errors that are clear from

the face of the judgment imposing the sentence in

light of the statutory authority. Claims that require con-

sideration of the proceedings before, during, or after trial

may not be presented by way of a motion to correct sen-

tence.” Robinson, 805 N.E.2d at 787.

Resendez identifies two claims that he asserts fall

within the scope of a § 35-38-1-15 motion: First, the judg-

ment of conviction in Cause No. 43 orders that his sen-

tence is to be consecutive to the sentence imposed in

Cause No. 220. Second, he was being made to serve proba-

tion and parole for the same offense. (Nonetheless,

he recognizes that his motion complained he was being

made to serve parole and probation at the same time.)

Neither claim, however, can be determined from the

face of the sentencing judgment.

As for the first claim, Resendez argues that an

Indiana trial court “is required to make a specific and

individualized statement of the reasons” to support con-

secutive sentences. See Ballenger v. State, 565 N.E.2d 751, 751

(Ind. 1991) (per curiam). He claims that the trial court

imposed the consecutive sentence without making such

a statement. Yet he offers no authority to establish that

the court had to provide such a statement in the sen-

tencing judgment itself. Reviewing courts often consult

the transcript of the sentencing hearing in search of a

statement of reasons to support consecutive sentences.

See, e.g., Ballard v. State, 715 N.E.2d 1276, 1278 n.4 (Ind. Ct.

App. 1999). To determine whether the trial court

provided a statement of reasons to support the imposi-

No. 11-1121 9

tion of a consecutive sentence in Cause No. 43, we would

have to consider matters beyond the judgment, such as

a transcript of the sentencing hearing or a written sen-

tencing memorandum. The alleged sentencing error is

not “clear from the face of the judgment.” Thus, this

challenge to Resendez’s sentence may only be raised

on direct appeal or in a post-conviction proceeding; a

motion to correct sentence under § 35-38-1-15 is an im-

proper remedy. See, e.g., Robinson, 805 N.E.2d at

787 (for “sentencing claims not facially apparent, the

motion to correct sentence is an improper remedy. Such

claims may be raised only on direct appeal and, where

appropriate, by post-conviction proceedings”).

The second claim likewise is not facially apparent

and thus, the motion to correct sentence is an improper

remedy. Neither judgment of conviction supports

the claim that Resendez was being made to serve

parole and probation for the same offense. In order to

determine whether he was serving probation and

parole for the same offense, we would have to consider

other proceedings, e.g., the parole board’s decisions.

Resendez argues that Robinson’s “erroneous on its face”

standard, id. at 786, would not preclude him from chal-

lenging the revocation order, although he recognizes

that the order is not a judgment of conviction. The

only authority he cites is Neff, but the case cannot be

read to support his assertion. See Neff, 888 N.E.2d at 1252

(holding that “[f]or purposes of filing a motion to

correct erroneous sentence, an abstract of judgment in

counties that do not issue judgments of conviction . . . may

function in place of a judgment of conviction”). Nothing

10 No. 11-1121

in Neff suggests that this rule should be extended to

parole board proceedings and Robinson holds otherwise.

805 N.E.2d at 787 (“Claims that require consideration of

the proceedings before, during, or after trial may not

be presented by way of a motion to correct sentence.”

(emphasis added)); see also Davis v. State, 937 N.E.2d 8, 11

(Ind. Ct. App. 2010) (stating Robinson “emphasized that

a motion to correct an erroneous sentence may only

arise out of information contained on the formal judg-

ment of conviction”), trans. denied. Besides, even when

Resendez’s pro se motion is construed liberally, it is

more than a stretch to read it as claiming that he was

serving probation and parole for the same offense. Rather,

the motion challenges the parole department’s decision

to have him simultaneously serve probation and

parole for two separate offenses and the parole board’s

authority to find that he violated the conditions of

parole in Cause No. 220 while he was serving probation

in Cause No. 43.

Resendez emphasizes that he labeled his motion a

“motion to correct erroneous sentence,” cited Ind. Code

§ 35-38-1-15, and made assertions implicating the

legality of his sentence. He elevates form over sub-

stance. Furthermore, by focusing on these facts, he

ignores Robinson’s clear holding that a motion pursuant

to § 35-38-1-15 may only be used “to correct sentencing

errors clear from the face of the judgment[.]” 805 N.E.2d

at 794. That the State may have erroneously treated

Resendez’s motion as one under § 35-38-1-15 doesn’t

transform it into a proper § 35-38-1-15 motion. Similarly,

that the State may have failed to comply with its post-

No. 11-1121 11

conviction procedures would not raise a cognizable

federal habeas claim. See Montgomery v. Meloy, 90 F.3d 1200,

1206 (7th Cir. 1996) (“[E]rrors in state collateral review

cannot form the basis for federal habeas corpus relief.”).

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 constitu-

tional right to counsel in such a proceeding.

III.

The district court’s judgment denying habeas relief

is A FFIRMED.

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