The opinion of the court was delivered by: J. William Ditter, Jr., Sr. J.
Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Timothy Katz and the response thereto. Katz, who is currently incarcerated in the State Correctional Institution in Houtzdale, Pennsylvania, challenges his incarceration for third degree murder. For the reasons that follow, the petition will be dismissed.
FACTS AND PROCEDURAL HISTORY:
On December 1, 2005, Katz entered a guilty plea to possessing an instrument of crime and to murder generally. On December 7, 2005, the Honorable C. Theodore Fritsch, Court of Common Pleas of Bucks County, entered a verdict of third degree murder.*fn1 On February 7, 2006, Katz was sentenced to an aggregate term of twenty-two to forty years of imprisonment.
Katz filed a direct appeal arguing that:
1. Petitioner was in custody when he made his first statement to police without being advised of his rights under Miranda and that his statement tainted the subsequent interrogation;
2. Trial counsel was ineffective for failing to permit Petitioner to testify at his suppression hearing to establish that he was in custody and that his subsequent guilty plea was involuntary as the product of an illegal confession;
3. Petitioner's guilty plea was involuntary based on trial counsel's erroneous advice and threats; and
4. Trial counsel was ineffective for failing to call Petitioner and Dr. Tepper at the degree of guilt hearing to establish that Petitioner acted under a sudden and intense passion resulting from an adequate provocation which would have reduced the crime to voluntary manslaughter.
On August 23, 2007, the Superior Court affirmed the judgment of sentence. Commonwealth v. Katz, No. 1973 EDA 2006, slip op. (Pa. Super. Aug. 23, 2007) (unpublished memorandum). On May 30, 2008, the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal. Commonwealth v. Katz, No. 783 MAL 2007 (Pa. 2008) (table).
On May 21, 2009, Katz filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. arguing that:
1. Petitioner was in custody when he gave his first statement to police officers at Lower Makefield township police department;
2. Trial counsel was ineffective for not permitting Petitioner to testify at his suppression hearing;
3. Trial counsel was ineffective for failing to argue that Petitioner requested an attorney during his interviews with both Lower ...