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Joshua Resendez v. Wendy Knight, 7th Cir No. 11-1121, 8/20/12

seventh circuit decision

Habeas Review – Right to Counsel – Collateral Attack 

Resendez litigated an unsuccessful pro se challenge to revocation of his state court parole, on the ground that he had completed service of that sentence therefore wasn’t in fact on parole. Forced to litigate the issue on his own, he argues on federal habeas that he was denied his right to counsel.

“[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”); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (holding there is no right to counsel in state collateral proceedings after 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 defendant had a right to counsel for his pre-appeal motion for a new trial).

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.

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