Michael Salcedo v. Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  Let me just address an issue:  Isn't there a more fundamental problem in this case for the petitioner, in that he entered a valid later guilty plea?   That waives antecedent defects, including constitutional claims, including anything that doesn't bear on subject matter jurisdiction, including ineffective assistance claims.

And I would cite for that proposition the case of Dukes v. Warden, which 161 Conn. 337, it's a 1971 case.   But at pages 343 and 344, they applied it to an ineffective of assistance claim.

Also, that rule has been applied in other habeas cases;  Reed v. Reincke, 155 Conn. 591, 1967 case, and the proposition is at page 601.   And Cajigas v. Warden, 179 Conn. 78, 1979 case, at page 81.   And as I said, in Dukes v. Warden, it was specifically applied as a waiver of ineffective assistance.

Several Federal Courts have arrived at the same conclusions with regard to ineffective assistance and pre-plea stages of the proceedings, motions to suppress, search and seizure, insanity pleas.

There is Siers v. Ryan, 773 Fed.2nd 37, that is a Third Circuit case in 1985;  U.S. v. Greene, 722 Fed.Sup. 1221;  that is an Eastern District of Pennsylvania District Court Case, 1989;  that was a double jeopardy claim that wasn't raised by counsel.

There is U.S. v. Winfield, 960 Fed.2nd, 970.   It's a Eleventh Circuit case, 1992, where the party was attacking his attorney for failure to file a motion to dismiss regarding the statute of limitations, later pled guilty, and they said you can't raise it.

And in Connecticut, there was a case I was involved in—that's how I know about these cases—it is McKnight v. Warden, 35 Conn.App. 762, 1994 case;  Cert. was denied by our Supreme Court, 231, Conn. 936, 1994, where basically the same kind of situation arose with regard to ineffective assistance at a probable cause hearing, there is a later valid guilty plea.   And it seems to me that under those circumstances, where there is a valid subsequent guilty plea, it's waived any errors that are committed at a prior denial or rejection.   So even if I assumed that the facts were as the petitioner has alleged here, he has waived that claim by his later guilty plea, which was a valid guilty plea.   Even if—and that would require me to dismiss the petition, even that weren't the law—in this particular case having looked at the material I have in front of me, the burden of proof is on the petitioner to show that his allegations are true.   And we have here a dichotomy of testimony that I can't make a finding that he has met his burden of proof by preponderance of the evidence.

I found the testimony of Attorney Serafinowicz to be credible.   And based on that, I am going to deny the petition.

So we have two alternative grounds, to either dismiss, because it's been waived by a later un-impugned guilty plea, or on a credibility basis as the facts alleged haven't been proven.

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Sferrazza, J.

Sferrazza, Samuel J., S.J.