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.
8-20-12