Jose Cotto v. Warden (2010)

MEMORANDUM OF DECISION

THE COURT:  This, of course, is a habeas corpus proceeding;  it is not a criminal proceeding.   And it's important to note that in a criminal proceeding, whereas the defendant in a criminal proceeding is entitled to the presumption of innocence with the burden of proof being on the government, the habeas corpus petitioner is not entitled to those presumptions;  because first of all, the petitioner stands in front of this Court not as an innocent person convicted of a crime but rather as a guilty person having been convicted of the crime.

The burden of proof, therefore, justifiably rests with the petitioner in a habeas corpus proceeding.

The standard by which we judge ineffective assistance of counsel is that contained within Strickland v. Washington, the seminal Supreme Court case on the matter, in which in order to be ineffective, a petitioner-excuse me.   In order to find that the counsel was ineffective, the petitioner must prove that there was deficient performance on the part of the counsel, and as a result of that, that the petitioner was prejudiced by the deficient.

In this case, there has been a plea of guilty. to the law.   And there is a modified standard in dealing with issues attacking the effectiveness of counsel in a guilty plea, and the prime case that deals with that is Hill v. Lockhart.   Not only must deficient performance and prejudice be shown, but before a habeas Court will set aside a guilty plea, the petitioner must demonstrate that but for the ineffective assistance of counsel, he would have pled not guilty, gone to trial, and obtained a better result.

Now, turning to the specifics in this case, the Court finds that the issue of the petitioner's competence was fully litigated in the trial court, and the petitioner was found to be competent.   There has been no evidence other than the self-serving testimony of the petitioner that would in any way support this Court finding that that conclusion of competence was anything other than correct.

Turning next to the advice offered to the petitioner from Attorney Goulet-Case, it's clear from the evidence presented in this case that her advice was fine;  that her advice was correct, was competent, was on target;  and that she, in fact, negotiated a very favorable plea agreement in the situation in which the petitioner was facing a significant period of incarceration.   Petitioner was confronted with the choice to be able to plead guilty to sex assault in the second degree, serve a nine-month minimum mandatory sentence, and have no sex offender registry, or could plead guilty to risk of injury, receive a sentence which would be totally suspended, but that would require, of course, sex offender registry.

It is clear that these choices were explained fully to both the petitioner and to his mother, and it is also clear that the choice as to which way to go was the choice selected by Mr. Cotto.

The Court finds nothing wrong with the advice or representation offered by Attorney Goulet-Case.   Looking at the canvass by Judge Wollenberg, it was flawless.   All of the elements and points that needed to be addressed were addressed, and the Court finds that there is no basis whatsoever to set aside the plea of guilty and the subsequent finding of guilty.

The fact that the petitioner does not like having to be in the sex offender registry is immaterial.

There simply is no basis upon which relief can be ordered.   As a result, the petition for a writ of habeas corpus is denied.

Stanley T. Fuger, Jr. Superior Court Judge

Fuger, S.T., J.