This opinion was released initially in typescript form. 

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1121

JOSHUA RESENDEZ,

Petitioner-Appellant,

v.

WENDY KNIGHT,

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.

ON APPLICATION FOR

CERTIFICATE OF APPEALABILITY

JULY 29, 2011

RIPPLE, Circuit Judge (in chambers). Joshua Resendez

filed a petition for habeas corpus in the district court.

His petition, and his subsequent request for a certificate

of appealability (“COA”), was denied by the district
2 No. 11-1121

court. Mr. Resendez has renewed his request for a COA

in this court. Because Mr. Resendez’s petition presents

a question concerning a defendant’s constitutional right

to counsel that we have not yet settled, I grant

Mr. Resendez’s application.

I

The record in this case does not explain much of

Mr. Resendez’s confinement or the circumstances surrounding his motion. Mr. Resendez represents that

he was convicted of robbery and forgery in an

Indiana state court. The record does not explain when

Mr. Resendez was convicted or sentenced or whether

he appealed his criminal conviction.

While in prison, Mr. Resendez filed a “belated motion

to correct erroneous sentence,” see R.1 at 2, which we

reasonably may assume was a motion under Indiana

Code section 35-38-1-15 (entitled “Erroneous sentence;

nature; correction” and allowing a defendant to file a

motion to correct a sentence “supported by a memorandum of law specifically pointing out the defect in the

original sentence”). After the state court denied the

motion, Mr. Resendez requested appointment of counsel

“to perfect his appeal.” R.2, Ex. A at 1. The trial court

denied Mr. Resendez’s request for counsel, see R.2, Ex. B,

and the Court of Appeals of Indiana dismissed

Mr. Resendez’s appeal with prejudice for failure to file

a brief, see R.2, Ex. D.

Mr. Resendez then filed a petition for federal habeas

corpus relief under 28 U.S.C. § 2254. He argued that the
No. 11-1121 3

state courts had denied him counsel in violation of the

federal Constitution. The district court believed that

Mr. Resendez was asserting a right to counsel in a

state postconviction proceeding and, therefore, dismissed

his petition and denied him a COA. Mr. Resendez

then sought a COA from this court.

II

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)).

Here, Mr. Resendez argues that, under the federal

Constitution, the State was required to provide him

with counsel for purposes of pursuing his motion

under Indiana Code section 35-38-1-15. The operative

question, therefore, is whether Mr. Resendez had a constitutional right to counsel in a proceeding under that

section.

“It is . . . well established that a criminal defendant

enjoys [a] right to counsel through his first appeal . . . but
4 No. 11-1121

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.

We previously have not had an occasion to determine

whether a motion brought pursuant to section 35-38-1-15

of the Indiana Code qualifies as a direct or collateral

proceeding. Indiana courts have distinguished this proceeding from a state habeas proceeding and have recognized that it may raise sentencing errors that otherwise

may be challenged through a direct appeal. See Robinson

v. State, 805 N.E.2d 783, 786-87 (Ind. 2004). Similarly,

they have noted that “[w]hen an error related to sentencing occurs, it is in the best interests of all concerned

that it be immediately discovered and corrected.” Id. at

786. That this procedure is an alternative to direct

appeal for sentencing issues and that it is designed to
No. 11-1121 5

Although a state court determination on whether counsel 1

should be appointed for this proceeding would not be determinative of our own inquiry, cf. Huusko v. Jenkins, 556 F.3d 633,

635 (7th Cir.) (“Federal law classifies a state proceeding for

the purpose of § 2254 . . . .”), cert. denied, 130 S. Ct. 402 (2009), we

note that there does not appear to be a consistent approach

among state courts with respect to whether counsel should

be appointed for purposes of this proceeding. Compare Neff

v. State, 888 N.E.2d 1249, 1250 (Ind. 2008) (noting that counsel

was appointed to the defendant following the denial of his

motion in the trial court) with Gaddie v. State, 566 N.E.2d 535,

537 (Ind. 1991) (upholding a trial court’s summary denial of

(continued...)

be brought as soon as the error is recognized both

support a colorable case that the procedure should be

characterized as direct for purposes of a defendant’s

constitutional right to counsel.

Whether the procedure is characterized correctly as

direct or collateral presents an antecedent non-constitutional question. A certificate of appealability still can be

granted on this question, however, because Mr. Resendez’s

petition raises a substantial constitutional issue, namely

the right to counsel. See Davis v. Borgen, 349 F.3d 1027,

1029 (7th Cir. 2003) (“If there is a substantial constitutional issue, and an antecedent non-constitutional issue

independently is substantial, then the certificate may

include that issue as well.” (citing Slack, 529 U.S. at 484)).

Because this court has not previously determined how

a motion brought under section 35-38-1-15 should be

characterized, cf. Longworth v. Ozmint, 302 F. Supp. 2d 569, 1
6 No. 11-1121

(...continued) 1

a motion without a formal hearing and without appointing

counsel).

8-8-11

574 (D.S.C. 2004) (listing that “the issue is very much

unresolved” in support of its conclusion that a COA

should issue), and because, given the factors this court

considers, reasonable jurists could differ on whether

this proceeding should be considered direct or collateral,

Mr. Resendez’s application sets forth a substantial

showing of the denial of a constitutional right. I express

no view on the correct resolution of the question presented. Mr. Resendez’s application for a COA therefore is

granted.

IT IS SO ORDERED.