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Hartzog v. Brooks

April 20, 2006

LANCE W. HARTZOG, PETITIONER
v.
MARILYN BROOKS, RESPONDENT



The opinion of the court was delivered by: Judge Muir

Petition Filed 8/11/05

ORDER

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 v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. 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 § 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.*fn1 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 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.

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

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 ...


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