                                  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*




      *
          This opinion is being released initially in typescript form.
No. 11-1121                                                           Page 2

        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 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 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.
No. 11-1121                                                             Page 3

                                      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 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.
No. 11-1121                                                            Page 4

          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 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,1 cf. Longworth v. Ozmint, 302 F. Supp. 2d

       1
          Although a state court determination on whether counsel 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 a motion
                                                                 (continued...)
No. 11-1121                                                           Page 5

569, 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.




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