Resendez v. Smith, No. 11–1121.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtTINDER
Citation692 F.3d 623
PartiesJoshua RESENDEZ, Petitioner–Appellant, v. Brian SMITH, Respondent–Appellee.
Decision Date20 August 2012
Docket NumberNo. 11–1121.

692 F.3d 623

Joshua RESENDEZ, Petitioner–Appellant,
v.
Brian SMITH, Respondent–Appellee.

No. 11–1121.

United States Court of Appeals,
Seventh Circuit.

Argued June 4, 2012.
Decided Aug. 20, 2012.


[692 F.3d 624]


Shawn Gebhardt (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.

Andrew A. Kobe (argued), Kelly A. Miklos, Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.


Before KANNE, WOOD, and TINDER, Circuit Judges.

TINDER, 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 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.

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 conviction. 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 incarceration (“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.

[692 F.3d 625]

He reported to the parole office and was instructed to report to the probation department so he could begin his probation in Cause No. 43. Resendez told the probation officer that he was supposed to serve his probation consecutive to the parole. Nonetheless, 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 release. 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 sentence 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 instructed 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.

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 governing 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 constitutional right to counsel in a proceeding under Ind.Code § 35–38–1–15. Whether his motion under § 35–38–1–15 was characterized properly as a direct or collateral proceeding presented an antecedent non-constitutional question.

II.

Resendez claims that the State denied him his constitutional right to the assistance

[692 F.3d 626]

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 conclude that even if the claim was preserved, Resendez cannot prevail.

A petitioner is entitled to federal habeas relief only if he...

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28 practice notes
  • Cal v. Dorethy, Case No. 14-cv-3834
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 26, 2019
    ...cannot form the basis of federal habeas relief." Montgomery v. Meloy , 90 F.3d 1200, 1206 (7th Cir. 1996) ; see also Resendez v. Smith , 692 F.3d 623, 628 (7th Cir. 2012) ("that the State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habe......
  • Chatman v. Magana, Case No. 14 C 1650
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 6, 2014
    ...State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habeas claim." Resendez v. Smith, 692 F.3d 623, 628 (7th Cir. 2012). Therefore, the Court denies Chatman's third habeas claim. Moreover, Chatman brings an ineffective assistance of postc......
  • Martinez v. Duncan, Case No. 12 C 2012
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 4, 2014
    ...State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habeas claim." Resendez v. Smith, 692 F.3d 623, 628 (7th Cir. 2012). In short, the Circuit Court's decision to deny a post-conviction evidentiary hearing is a matter of state law, theref......
  • United States ex rel. Davis v. Yurkovich, Case No. 12 C 6610
    • United States
    • U.S. District Court — Northern District of Illinois
    • December 17, 2012
    ...established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Resendez v. Smith, 692 F.3d 623, 626 (7th Cir. 2012). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme C......
  • Request a trial to view additional results
28 cases
  • Cal v. Dorethy, Case No. 14-cv-3834
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 26, 2019
    ...cannot form the basis of federal habeas relief." Montgomery v. Meloy , 90 F.3d 1200, 1206 (7th Cir. 1996) ; see also Resendez v. Smith , 692 F.3d 623, 628 (7th Cir. 2012) ("that the State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habe......
  • Chatman v. Magana, Case No. 14 C 1650
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 6, 2014
    ...State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habeas claim." Resendez v. Smith, 692 F.3d 623, 628 (7th Cir. 2012). Therefore, the Court denies Chatman's third habeas claim. Moreover, Chatman brings an ineffective assistance of postc......
  • Martinez v. Duncan, Case No. 12 C 2012
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 4, 2014
    ...State may have failed to comply with its post-conviction procedures would not raise a cognizable federal habeas claim." Resendez v. Smith, 692 F.3d 623, 628 (7th Cir. 2012). In short, the Circuit Court's decision to deny a post-conviction evidentiary hearing is a matter of state law, theref......
  • United States ex rel. Davis v. Yurkovich, Case No. 12 C 6610
    • United States
    • U.S. District Court — Northern District of Illinois
    • December 17, 2012
    ...established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Resendez v. Smith, 692 F.3d 623, 626 (7th Cir. 2012). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme C......
  • Request a trial to view additional results

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