                                In the

United States Court of Appeals
                  For the Seventh Circuit

No. 11-1121

JOSHUA R ESENDEZ,
                                                  Petitioner-Appellant,
                                    v.

W ENDY K NIGHT,
                                                 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.


                       O N A PPLICATION FOR
                  C ERTIFICATE OF A PPEALABILITY


                            JULY 29, 2011




   R IPPLE, 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



    This opinion was released initially in typescript form.
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 sur-
rounding 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 memoran-
dum 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 constitu-
tional 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 con-
stitutional 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. Addi-
tionally, 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 pro-
ceeding from a state habeas proceeding and have recog-
nized 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 sen-
tencing 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

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-constitu-
tional 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 constitu-
tional 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,1 cf. Longworth v. Ozmint, 302 F. Supp. 2d 569,



1
   Although a state court determination on whether counsel
should be appointed for this proceeding would not be determi-
native 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...)
6                                             No. 11-1121

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 pre-
sented. Mr. Resendez’s application for a COA therefore is
granted.
                                         IT IS SO O RDERED.




1
  (...continued)
a motion without a formal hearing and without appointing
counsel).



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