UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

LANCE W. HARTZOG, :

:

Petitioner : No. 4:CV-05-1635

:

vs. : (Petition Filed 8/11/05) 

:

MARILYN BROOKS, : (Judge Muir)

:

Respondent :

ORDER

April 20, 2006

I. Background

Petitioner, Lance W. Hartzog (“Hartzog”), an inmate

presently incarcerated at the State Correctional Institution,

Albion, Pennsylvania filed the above-captioned petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). 

On September 14, 2005, in accordance with United States vs.

Miller, 197 F.3d 644 (3d Cir. 1999), and Mason vs. Meyers, 208

F.3d 414 (3d Cir. 2000), the court issued an order advising

petitioner that he could:

(1) have the court rule on [his] petition as filed,

that is, as a § 2254 petition for writ of habeas corpus

and heard as such, but lose his ability to file a

second or successive petition absent certification by

the Court of Appeals, or

(2) withdraw his petition and file one, all inclusive

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 1 of 25
1

Although provided with an opportunity to file a

traverse, (Doc. No. 2), petitioner did not file one. 

2

§ 2254 petition within the one-year statute of

limitations period prescribed by 28 U.S.C. § 2244(d).

(Doc. 2). On September 21, 2005, Hartzog filed a notice of

election in which he opted to have the court consider his

petition as filed. (Doc. 3). A response to the petition having

been filed, the petition is ripe for disposition.1 For the

reasons that follow, the court will deny the petition. 

Procedural Background

The following background has been extracted from the opinion

of the Superior Court of Pennsylvania, addressing the

petitioner’s appeal from the denial of his petition for relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. (Doc. No. 7, Ex. 7, Opinion of the Superior Court

of Pennsylvania dated May 16, 2005). 

The PCRA Court set forth the factual background and

procedural history of this case as follows:

On May 4, 1999, the Commonwealth of Pennsylvania

(hereinafter “Commonwealth”) filed an Information

charging [Appellant]. . .with one count of Criminal

Homicide based upon an incident that occurred on

February 17, 1999, wherein Robert Henson was fatally

stabbed in the chest by [Appellant]. On March 7, 2000,

[Appellant] stood before this Court and entered a plea

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 2 of 25
3

of Guilty to Murder in the Third Degree [, 18 Pa.C.S.A.

§ 2502]. At that time, this Court sentenced

[Appellant] to imprisonment for a term of eighteen (18)

to thirty-six (36) years. Attorney Paul Walker

represented [Appellant] at the Guilty Plea and

Sentencing Hearing. 

(Doc. No. 7, Ex. 7, Superior Court opinion at p. 2, citing PCRA

Court Opinion, 7/13/04 at 1-2). 

On April 2001, Hartzog filed a petition under Pennsylvania’s

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq.

(“PCRA”). Id. Evidentiary hearings were held on March 27, 2002

and March 7, 2003. Id. On July 18, 2003, the PCRA court denied

Hartzog's PCRA petition. Id. 

On August 30, 2004, Hartzog filed an appeal to the

Pennsylvania Superior Court. (Doc. No. 7, Ex. 7). He argued

that since the PCRA court failed to give him notice of the July

18, 2003 Order denying his PCRA petition, and he did not

discover that the petition had been denied until after August

17, 2004, the Superior Court should consider his appeal as

timely. Id. The Superior Court determined that the PCRA

Court's docket failed to indicate that Hartzog was notified by

certified mail of the PCRA Court's July 18, 2003 denial of his

PCRA petition, and considered the appeal on the merits. Id. 

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 3 of 25
4

The issues raised on appeal before the Superior Court were

as follows: 

1. Where nothing appears on the record to show

that Appellant was informed that his PCRA

petition was denied by the court, and

appointed counsel abandons him, do the rules

of criminal procedure mandate that the

appellant's appeal be deemed timely filed?

2. When both the written and on-the-record

colloquy's [sic] fail to explain the legal

element of malice to an illiterate defendant

who had a viable defense to a malicious

killing, should trial counsel be deemed

ineffective for not objecting to such a clear

defect in the guilty plea proceeding?

3. Where trial counsel represented a chief

prosecution witness before the appellant, is

he afforded the effective representation of

counsel when such a potential conflict exists

during the guilty plea process?

4. When trial counsel admits that appellant had

a strong defense to third degree murder,

would effective representation advise a plea

of guilty to a malicious killing?

5. Where an illiterate defendant requests his

counsel to file for reconsideration of a

“negotiated” sentence following his guilty

plea, does trial counsel render effective

assistance when refusing to file to withdraw

the plea and file a direct appeal when he

knew that appellant wanted something filed?

(Doc. No. 7, Ex. 7 at p. 3). 

On May 16, 2005, the Superior Court issued a Memorandum

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 4 of 25
5

Opinion affirming the PCRA court's denial of Hartzog's PCRA

petition. (Doc. 7, Exhibit 7).

On August 11, 2005, Hartzog filed the instant petition for

writ of habeas corpus in which he raises the following claims:

(1) Counsel was ineffective for not objecting to the

failure of the guilty plea colloquy to explain

“malice”. 

(2) Counsel was ineffective based on a “conflict of

interest” by representation of a prosecution

investigator. 

(3) Counsel was ineffective for advising Hartzog to

plead guilty when he had a defense to third degree

murder. 

(4) Counsel was ineffective for failing to file a

direct appeal when requested by Hartzog. 

(Doc. No. 1, petition). 

II. Discussion

A. Exhaustion

“A federal court may not grant a writ of habeas corpus

unless (1) ‘the applicant has exhausted the remedies available

in the courts of the state’, (2) no such state remedy is

available or (3) available remedies are ineffective to protect

the applicant’s rights. 28 U.S.C. § 2254(b)(1).” Henderson vs.

Frank, 155 F.3d 159, 164 (3d Cir. 1998). “The exhaustion

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 5 of 25
6

requirement is satisfied when the state courts have had an

opportunity to pass upon and correct alleged constitutional

violations.” Evans vs. Court of Common Pleas, Delaware County,

Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). The exhaustion

requirement “is not a mere formality. It serves the interests

of comity between the federal and state systems by allowing the

state an initial opportunity to determine and correct any

violations of a federal prisoner’s federal rights.” Gibson vs.

Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). “Unless it

would be patently futile to do so [state prisoners] must seek

relief in state court before filing a federal habeas

petition....” Santana vs. Fenton, 685 F.2d 71, 77 (3d Cir.

1982). 

The habeas corpus petitioner shoulders the burden of

establishing exhaustion of state court remedies. McMahon vs.

Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987). The threshold

inquiry in the exhaustion analysis is whether the claims

asserted in the habeas corpus petition have been “fairly

presented” to the state courts. Picard vs. Connor, 404 U.S.

270, 275 (1971). “All claims that a petitioner in state custody

attempts to present to a federal court for habeas review must

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 6 of 25
7

have been fairly presented to each level of the state courts.”

Lines vs. Larkins, 208 F.3d 153, 159 (3d Cir. 2000), cert.

denied, 531 U.S. 1082 (2001). Fair presentation requires that

the “substantial equivalent” of a petitioner’s federal habeas

claims be presented to the state courts. Lambert vs. Blackwell,

134 F.3d 506, 513 (3d Cir. 1997). 

The respondent concedes that petitioner has exhausted his

state court remedies. The merits of the claims will therefore be

addressed. 

B. Consideration of the claims on the merits

“The Antiterrorism and Effective Death Penalty Act of 1996

modified a federal habeas court's role in reviewing state

prisoner applications in order to prevent federal habeas

'retrials' and to ensure that state-court convictions are given

effect to the extent possible under law.” Bell vs. Cone, 535

U.S. 685, 693 (2002). Specifically, when a federal-law issue

has been adjudicated on the merits by a state court, the federal

court reverses only when the decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 7 of 25
8

was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2). See generally, Moore vs. Morton, 255 F.3d

95, 104-05 (3d Cir. 2001). The Court has held that the

“contrary to” and “unreasonable application” clauses of §

2254(d)(1) have independent meaning. Williams vs. Taylor, 529

U.S. 362, 404-405 (2000). As explicated in Bell, 535 U.S. at

694:

A federal habeas court may issue the writ under the

‘contrary to’ clause if the state court applies a rule

different from the governing law set forth in our

cases, or if it decides a case differently than we have

done on a set of materially indistinguishable

facts....The court may grant relief under the

‘unreasonable application’ clause if the state court

correctly identifies the governing legal principle from

our decisions but unreasonably applies it to the facts

of the particular case....The focus of the latter

inquiry is on whether the state court’s application of

clearly established federal law is objectively

unreasonable . . .

This deferential standard of review applies to state court

decisions on ineffective assistance of counsel claims. Id. at

694-98.

The “clearly established federal law” applicable to

Hartzog's claims of ineffective assistance of counsel is the

familiar two-pronged inquiry the United States Supreme Court

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 8 of 25
9

articulated in Strickland vs. Washington, 466 U.S. 668, 688

(1984): (1) was counsel’s performance deficient, and (2) did the

deficient performance prejudice the defense? Prejudice has been

defined as a “showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id. at 687. See also Frey vs. Fulcomer, 974 F.2d

348, 358 (3d Cir. 1992) (“[A] petitioner must demonstrate a

reasonable probability that, but for the unprofessional errors,

the result would have been different.”). On habeas corpus

review, the pertinent inquiry is whether the state court

decision is contrary to or an objectively unreasonable

application of Supreme Court precedent. Rompilla vs. Horn, 355

F.3d 233, 250 (3d Cir. 2004).

Petitioner in this case advances no argument that the

Superior Court decision is contrary to extant United States

Supreme Court precedent. In this regard, petitioner does not

maintain that the ineffective assistance test applied by the

state court is inconsistent with the test established in

Strickland and developed in its progeny. Furthermore, there does

not appear to be any Supreme Court case that found ineffective

assistance under circumstances indistinguishable or even similar

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 9 of 25
10

to those presented here. Our Court of Appeals has held that “a

state court decision that applied the Pennsylvania test did not

apply a rule of law that contradicted Strickland and thus was

not ‘contrary to’ established Supreme Court precedent.”

Rompilla vs. Horn, 355 F.3d 233, 250 (3d Cir. 2004), citing,

Werts vs. Vaughn, 228 F.3d 178, 202-204 (3d Cir. 2000), cert.

denied, 532 U.S. 980 (1987). The Pennsylvania Superior Court

applied the governing Pennsylvania test in this case, and its

decision, therefore, cannot be regarded as “contrary to” Supreme

Court rulings.

The dispositive question, then, is whether any of the

Superior Court’s rulings at issue here reflect an unreasonable

application of the Strickland test. To carry his burden on this

claim, petitioner “must demonstrate that ‘the state court

decision, evaluated objectively and on the merits, resulted in

an outcome that cannot reasonably be justified under

Strickland.’” Rompilla, 355 F.3d at 250. Each asserted instance

of ineffective assistance will be considered against this

standard.

1. Counsel's failure to object to the trial court's

explanation of “malice” during the guilty plea colloquy.

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 10 of 25
11

Hartzog states in his petition that “during the guilty plea

colloquy, the trial court explained the legal element of

'malice' for third degree murder as 'ill will'” and that

petitioner “is illiterate and did not understand the definition

of malice before he plead guilty to third degree” and “trial

counsel failed to object to the failure of the trial court to

explain malice.” (Doc. No. 1, petition). 

Due process guarantees require that a defendant’s plea be

voluntary and intelligent. Bousley vs. United States, 523 U.S.

614, 618 (1998); Brady vs. United States, 397 U.S. 742, 748

(1970); Boykin vs. Alabama, 395 U.S. 238-242 (1969). As such,

no criminal defendant should plead to a crime unless, and until,

he has had explained to him and understands all of his

constitutional rights and protections, including the privilege

against compulsory self-incrimination guaranteed by the Fifth

Amendment, the right to trial by jury, and the right to confront

one’s accusers. In the Boykin case, the United States Supreme

Court emphasized the importance of a judge’s duty in ensuring

that a criminal defendant have a full understanding of what the

plea connotes and its consequences by “canvassing the matter” on

the record. Boykin, 395 U.S. at 243-44. The failure to

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 11 of 25
12

specifically articulate these rights, however, is not

dispositive if the circumstances otherwise establish that the

plea was constitutionally acceptable. United States vs. Stewart,

977 F.2d 81, 85 (3d Cir. 1992), cert. denied, 507 U.S. 979

(1993)(plea colloquy adequate despite trial court’s failure to

enumerate Boykin rights given that those rights were reviewed in

prior plea colloquy that occurred only six weeks earlier.) 

A plea is voluntary if the accused understands the nature

of the charges against him and the constitutional protections

that he is waiving. Henderson vs. Morgan, 426 U.S. 637, 645

n.13 (1976). Further, the plea cannot be induced by threats or

misrepresentations. The voluntariness of a plea presents a

question of law. Marshall vs. Lonberger, 459 U.S. 422, 431-32

(1983). However, state court determinations of underlying

questions of fact constitute matters which should receive

deference under § 2254:

[A]lthough “the governing standard as to

whether a plea of guilty is voluntary for

purposes of the federal Constitution is a

question of federal law,” questions of

historical fact, including inferences

properly drawn from such facts, are in this

context entitled to the presumption of

correctness accorded state court factual

findings under [former] 28 U.S.C. 2254(d).

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 12 of 25
13

Parke vs. Raley, 506 U.S. 20, 35 (1992). 

 

Thus, the issue whether a defendant understood the consequences

of pleading falls within the scope of factual findings entitled

to deference. See Iaea vs. Sunn, 800 F.2d 861, 864 (9th Cir.

1986).

A plea is knowing and intelligent if it is done “with

sufficient awareness of the relevant circumstances and likely

consequences.” Brady, 397 U.S. at 748. The plea is intelligent

and knowing where there is nothing to indicate that the

defendant is incompetent or otherwise not in control of his or

her mental faculties, is aware of the nature of the charges, and

is advised by competent counsel. Id. at 756. 

At the oral plea colloquy, Hartzog stated that he completed

his education through ninth grade, and that he did not read or

write English very well. (Doc. No. 7, Ex. 2, N.T., 3/7/00,

Guilty Plea Hearing, pp. 4, 12). Hartzog indicated that,

subsequent to his arrest in this matter, he was given a mental

evaluation, which was unremarkable, and that he understood the

plea proceeding. Id. at 14. He further testified that he was

not under the influence of any drugs or alcohol that would

interfere with his ability to understand the plea proceeding.

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 13 of 25
14

Id. at 15. He also indicated that an investigator examined the

case, that he discussed the case with plea counsel, and the he

was satisfied with counsel's representation. Id. at 15-16. 

Hartzog further testified that he understood he was waiving

his right to a jury trial and the presumption of innocence, id.

at pp. 16-18, and that he understood that he was admitting that

he committed the murder of the victim. Id. at pp. 17, 18. The

trial court also made certain that Hartzog understood that, in

exchange for the plea of guilty of third-degree murder, the

Commonwealth was agreeing not to prosecute him for first-degree

murder, and was agreeing to withdraw his remaining charges. Id.

at 20. 

Additionally, the record reflects that Hartzog understood

that the Commonwealth agreed not to oppose the imposition of a

sentence to run concurrently with any time to be served as a

result of Hartzog's violation of his parole. Id. at pp. 20, 21.

Hartzog indicated that no other promises had been made to him in

exchange for the entry of his plea, and that no one had

threatened, forced, or coerced him into entering the guilty

plea. Id. at 21. Moreover, the trial court made certain that

Hartzog was aware of the possible range of the sentence, and

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 14 of 25
15

that he knew that the court was not bound by the agreement. Id.

at 21, 22. 

When the trial court stated that Hartzog was pleading guilty

to stabbing Robert Henson “intentionally but not with the

specific intent to kill, the prosecutor interjected:

Your Honor, just so it's clear for the record, that

would be with malice but not with the specific intent

to kill. I know it's not in the colloquy but I think

it should be read. 

Id. at 24. The trial court agreed and replied: 

Yes, a third degree homicide is a killing with malice

but lacking the specific intent to kill. Under

Pennsylvania law, malice means ill will, okay? 

Id. Hartzog indicated that he understood the element of malice,

the he understood the full meaning of the plea he was entering,

and that he desired to plead guilty. Id. at 24-26. 

Immediately after the court accepted the plea, Hartzog's

counsel stated on the record that he had explained to Hartzog

that the reason the guilty plea colloquy indicated that the

crime was committed without specific intent was because Hartzog

intentionally did the act of stabbing the victim, regardless of

whether he intended the consequences of the stabbing. Id. at

27. Hartzog's counsel also stated that there was no dispute as

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 15 of 25
16

to whether Hartzog had acted with malice. Id. The trial court

further defined malice as the application of a lethal weapon

against a vital body part, and Hartzog again indicated that he

understood the element of malice. Id. at 28. 

Thus, it is apparent from the transcript that the trial

court judge informed Hartzog that malice was an element of third

degree murder; that he twice defined malice during the oral plea

colloquy; and gave Hartzog the opportunity to express any

misunderstanding he might have had. As such, this Court finds

that the transcript of petitioner’s guilty plea supports the

Superior Court’s finding that petitioner’s plea was knowing and

voluntary, and there is no basis to rebut the statutory

presumption of correctness which attaches to the factual

component of this finding. Accordingly, there is no arguable

merit to the contention that Hartzog's counsel was ineffective

in failing to object to the failure of either the written or

oral plea colloquy to define “malice” as an element of thirddegree murder. Thus, Hartzog's ineffectiveness claim is without

merit. 

2. Trial counsel's conflict of interest.

Petitioner next claims that trial counsel “was ineffective

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 16 of 25
17

based on his prior representation of Detective Fritz Golden, who

was the chief investigator on Hartzog's case. Counsel informed

Hartzog of the circumstances of his prior representation, but

never informed the court of the possible conflict.” (Doc. No.

1, petition). In support of his position, Hartzog relies on

Commonwealth vs. Hill, 417 A.2d 745 (Pa. Super 1979), for the

proposition that counsel had a duty to inform the court of the

potential conflict, because it is the court and not the

defendant who determines if the circumstances constitute a

conflict of interest. In Hill, the Pennsylvania Superior Court

found that the lower court erred in not holding a hearing to

determine whether trial counsel rendered ineffective assistance

of counsel, where Hill was unaware, until the trial commenced,

that the Commonwealth's chief witness was a client of his

counsel and that there was a potential for a conflict of

interest. 

The Pennsylvania Superior Court’s decision in the instant

case clearly refutes the applicability of Hill, as Hartzog's

counsel discovered the potential conflict at the outset of his

representation and consulted Hartzog prior to his preliminary

hearing. Specifically, the Court held that:

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 17 of 25
18

Our review of the record reflects that the PCRA court

addressed the question of the potential conflict at the

evidentiary hearing on the PCRA petition. At the

hearing, Appellant testified that his plea counsel had

informed him that he had previously represented

Detective Golden. N.T., 3/27/02, at 14-15. Appellant

further testified that he indicated to plea counsel

that he had no problem with the continued

representation. Id. at 25. Plea counsel also

testified that Appellant never requested him to

discontinue his representation. Id. at 84. 

Accordingly, Appellant's ineffectiveness claim lacks

arguable merit. 

(Doc. No. 7, Ex. 7, p. 11). 

Thus, it is clear from the record that there was no conflict

of interest and no basis to involve the court in any discussions

concerning the alleged potential of conflict. Accordingly,

petitioner’s ineffective assistance of counsel claim with

respect to counsel's alleged conflict of interest is without

merit. 

3. Counsel's ineffectiveness in pursuing self-defense claim.

Petitioner next contends that counsel was ineffective for

advising Hartzog to plead guilty when he had a meritorious selfdefense claim to third degree murder. He claims that plea

counsel failed to interview an eyewitness, Florence Mock,

concerning an allegedly exculpatory statement she gave police.

Moreover, he states that at his PCRA hearing, Ms. Mock

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 18 of 25
19

“testified that Hartzog was defending himself from an attack

initiated by the victim.” (Doc. No. 1, petition). 

To establish a defense of self-defense under Pennsylvania

law, a defendant must show that he was free from fault in

provoking or continuing the difficultly which resulted in the

slaying; that he reasonably believed he was in imminent danger

of death or great bodily harm and that there was a necessity to

use such force to save himself therefrom; and that he did not

violate the duty to retreat or avoid the danger. Commonwealth

vs. Mayfield, 585 A.2d 1069, 1071 (Pa. Super. 1991). 

The Superior Court's review of the record reflects the

following: 

[A]t the evidentiary hearing on March 27, 2002,

Appellant testified that Florence Mock was his

girlfriend at the time of the killing and was a witness

to the incident. N.T., 3/27/02, at 7-8. Appellant's

plea counsel testified that he had made several

attempts to contact Ms. Mock, but she was represented

by counsel, so he contacted her counsel to inquire

about her testimony. Id. at 65-67, 80-81. Ms. Mock

was also facing aggravated and simple assault charges

in a separate criminal matter, and Appellant expressed

concern that she might testify against him. Id. at 57,

66, 70; N.T., 3/7/03 at 25. Ms. Mock's counsel

responded that, if Appellant's plea counsel could

arrange the dismissal of the charges against Ms. Mock,

he would allow plea counsel to interview her;

Appellant's plea counsel did not have any such

authority. Id. at 67. 

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 19 of 25
20

Appellant's plea counsel was concerned about the

inculpatory nature of Ms. Mock's testimony, based on

the information provided by Appellant and Ms. Mock's

statement to police that was provided in discovery.

N.T., 3/27/02, at 69-70. Plea counsel was concerned

because the information provided to him suggested that

Appellant and Ms. Mock lured the victim to beat him in

relation to collecting money from a drug deal. Concern

centered on the fact that a knife that was present was

either already open or opened by Appellant

demonstrating deliberation and intent on the part of

Appellant. Id. at 71-72. The Commonwealth was under

an obligation to provide any statement that was

exculpatory to Appellant which Ms. Mock would have

given in her interview with the District Attorney's

Office; the Commonwealth provided no such statement.

Id. at 68-70. Appellant's plea counsel testified that

he made a strategic decision to advise Appellant to

plead guilty to third-degree murder because the

testimony could suggest that Appellant was in the home

of another person, where he took a bat from the living

room, and he used unnecessary deadly force to collect

a drug debt. Id. at 74-75. 

Ms. Mock's counsel testified at the evidentiary hearing

that, because of the criminal charges against Ms. Mock

and the implication of Ms. Mock's participation in the

charges against Appellant, counsel refused the request

of Appellant's plea counsel to interview Ms. Mock or

have his investigator interview her. N.T. 5/31/02, at

4-5. Further, Ms. Mock testified that, had she been

called at trial, she would have testified that

Appellant acted in self-defense. N.T., 3/7/03, at 12-

15. Ms. Mock was apprehensive, however, that the

Commonwealth might charge her for her involvement in

the incident and that her testifying might impact on

her efforts to get custody of her daughter, who was

under the care of Children and Youth Services; she did

not communicate her fear to her counsel, however. Id.

at 19-20, 22-23. Ms. Mock admitted on crossexamination that it was her understanding that the

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 20 of 25
21

victim owed Appellant money for drugs. Id. at 26-29.

In view of all of the evidence produced at the

evidentiary hearings on the PCRA petition, there was a

reasonable basis for plea counsel's strategic decision

not to pursue Ms. Mock's testimony at trial and to

advise Appellant to enter a plea of guilty to thirddegree murder. Accordingly, plea counsel was not

ineffective. 

(Doc. No. 7, Ex. 7, pp. 12-14). 

In evaluating whether counsel's performance was deficient,

this Court “must defer to counsel's tactical decisions, avoid

"the distorting effects of hindsight" and give counsel the

benefit of a strong presumption of reasonableness. See

Strickland at 689. As such, this Court finds that the record

relied upon by the Superior Court supports a finding that plea

counsel's strategic decision in advising Hartzog to plea guilty

to third-degree murder was reasonable. Thus, the Superior

Court's decision, in light of the circumstances, do not reflect

an unreasonable application of the Strickland test, nor is it an

unreasonable application of the facts in light of the evidence

presented in state court. Thus, Hartzog's claim of ineffective

assistance of counsel for plea counsel's recommendation that

Hartzog plead guilty to third-degree murder is without merit. 

4. Failure to file a motion withdrawing guilty plea and/or

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 21 of 25
direct appeal.

Hartzog's final claim is that he requested counsel to file

a motion to withdraw his guilty plea immediately after

sentencing and that counsel “refused to do so because there was

no legal basis for the motion.” (Doc. 1, petition). Petitioner

further claims that he “is illiterate and did not know that he

needed to file a motion to withdraw his plea and a direct

appeal.” Id. 

If a motion to withdraw a guilty plea is made before

sentencing, there is no absolute right to withdraw the plea;

rather, the defendant bears the burden of showing a fair and

just reason to withdraw the plea. United States vs. Brown, 250

F.3d 811, 815 (3d Cir. 2001); United States vs. Isaac, 141 F.3d

477, 485 (3d Cir. 1998). “A shift in defense tactics, a change

of mind, or the fear of punishment are not adequate reasons to

impose on the government the expense, difficulty, and risk of

trying a defendant who has already acknowledged his guilt by

pleading guilty.” Brown at 815 (further citation omitted). 

Hartzog asserts only that he requested his counsel to

withdraw his guilty plea. (Doc. No. 1, petition). He offers no

basis for withdrawing his guilty plea. Thus, he cannot show

that he was prejudiced by counsel’s failure to pursue a motion

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 22 of 25
2

When given the opportunity at sentencing to speak to 

 the Judge, Hartzog responded with the following:

THE JUDGE: So you sort of compromised with this

plea agreement. And in compromising

with the plea agreement, you've

given yourself the opportunity to

still get out and still have a

constructive life. Whether that

happens is up to you. Do you

understand?

THE DEFENDANT: Yes. 

THE JUDGE: Do you have any questions?

THE DEFENDANT: No. 

THE JUDGE: Is there anything I can answer for you or

help you with at this time?

THE DEFENDANT: No. 

THE JUDGE: Okay. Then the sentence is imposed. 

 (Doc. 7, Exhibit , N.T., p. 38). At no time did Hartzog 

23

to withdraw. In any event, Hartzog does not explain how

counsel’s alleged failure to file a motion to withdraw his plea

relates to his plea of guilty, and nothing in the record

suggests that petitioner would not have pled guilty but for his

counsel’s now allegedly deficient performance, particularly in

light of declarations made during his guilty plea colloquy and

sentencing.2 See Blackledge vs. Allison, 431 U.S. 63, 74

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 23 of 25
 mention that he wished to withdraw his guilty plea. 

24

(1977)(“Solemn declarations in open court carry a strong

presumption of verity.”). Thus, the Court concludes that it is

clear from the record that there is no basis for petitioner’s

ineffective assistance of counsel claim with respect to counsel

failing to file a motion to withdraw the guilty plea. 

Failure to file a direct appeal

Hartzog claims that he informed counsel of his desire to

file a direct appeal and none was filed. (Doc. 1, petition). 

While such a claim is cognizable in proceedings under §2254,

see Roe vs. Flores-Ortega, 528 U.S. 470 (2000), petitioner

fails, however, to explain how such renders his guilty plea

involuntary and unknowing. In addition, petitioner one again

fails to satisfy the prejudice requirement of Strickland. 

As is evidenced from the Pennsylvania Superior Court’s

review of the petitioner’s PCRA petition, petitioner was

permitted to challenge his conviction with no limitation placed

on any issue presented. Thus, in effect, petitioner’s direct

appeal was reinstated through his PCRA proceedings, and

petitioner cannot argue any prejudice suffered from the

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 24 of 25
deprivation of a direct appeal. The petition will be denied as

to this claim. 

III. Conclusion

 Having conducted the requisite review of the record, the

Court finds Hartzog's guilty plea to have been voluntary,

knowing and intelligent. As such, there is no support in the

record for petitioner's claims of ineffective assistance of

counsel and he is, therefore, not entitled to federal habeas

corpus relief. For all of the foregoing reasons, his petition

for writ of habeas corpus will be denied. 

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus, (Doc. 1) is

DENIED.

2. The Clerk of Court is directed to CLOSE this case.

 3. There is no basis for the issuance of a certificate of

appealability. 

 s/Malcolm Muir 

MUIR

United States District Judge

Case 4:05-cv-01635-MM-DB Document 8 Filed 04/20/06 Page 25 of 25