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Joshua Resendez v. Knight, 7th Cir No. 11-1121, 7/29/11

seventh circuit court of appeals decision

Habeas – Certificate of Appealability

 Under § 2253(c)(2) of Title 28, “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” The Supreme Court has observed that an applicant has made a “substantial showing” where “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

The principle may be settled, but the particular result is interesting. The underlying issue is whether Resendez was denied his right to counsel for purposes of pursuing a motion under Indiana Code 35-38-1-15 to correct sentencing error. The catch is that the constitutional right to counsel attaches to direct appeal (Wisconsin: §§ 809.30, 974.02), not collateral attack (§ 974.06), and Indiana courts have, if not quite recognizing sentencing-error correction as part of the direct appeal, at least acknowledged it to be an “alternative” to collateral attack. Because the “antecedent” question (entitlement to counsel) is unresolved, the question of whether Resendez was denied counsel raises a substantial question of constitutional law, and Judge Ripple issues the COA.

Judge Ripple usefully summarizes applicable principles with respect to distinguishing direct- from collateral-appeal:

“It is . . . well established that a criminal defendant enjoys [a] right to counsel through his first appeal . . . but that, 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). Federal law classifies a state proceeding as direct or collateral for the purpose of 28 U.S.C. § 2254. See Huusko v. Jenkins, 556 F.3d 633, 635 (7th Cir.), cert. denied, 130 S. Ct. 402 (2009) . We look primarily to two considerations in determining whether, in pursuing the denial of a motion in a state appellate court, the proceeding is part of the direct appeal, for which counsel is guaranteed, or whether it is collateral, for which counsel is not, see Coleman v. Thompson, 501 U.S. 722, 756-57 (1991). First, we consider the timing of the motion, specifically, whether the motion was brought prior to the disposition of the direct appeal. See Kitchen, 227 F.3d at 1018. Additionally, we consider the procedural complexity of the motion filed and its potential impact on the course of the defendant’s criminal proceedings. See id.

Lessons for the Wisconsin practitioner? In other words, is there some sort of challenge that might be brought in Wisconsin apart from the 809.30 / 974.02 direct-appeal mechanism but no less part of the direct appeal? § 973.13 (sentence imposed in excess of maximum void)? § 974.07 (motion for DNA testing)? What is your opinion?

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