dissenting.
I respectfully dissent because I believe the majority misinterprets Heiser I and thus erroneously limits the grounds which Heiser could utilize for his guilty plea withdrawal. *309In Heiser I, we opined that “[i]f Heiser can show a ‘fair and just’ reason to withdraw his guilty plea, then withdrawal is and was proper and he has been denied due process, unless the Commonwealth can show that it is substantially prejudiced by allowing Heiser to withdraw his guilty plea.” 951 F.2d at 564. I would hold that Heiser demonstrated a “fair and just reason” for withdrawal by his assertion of innocence. Since the Commonwealth had previously conceded a lack of prejudice if his guilty plea withdrawal had been timely, the district court should have granted the writ.
There is a second reason which I believe justifies habeas relief. Unlike the majority, I would address the Doggett issue in light of Heiser’s assertion of innocence as grounds for withdrawal of his plea. Analysis of this issue compels a conclusion that the long delay of some 13 years has presumptively prejudiced Heiser’s ability to defend himself— rising to the level of a due process violation. Heiser’s custody thus encroaches upon his constitutional rights.
In my view, each of these approaches separately warrants habeas relief. I address them seriatim.
I.
I am impressed by Heiser’s long-standing assertion of innocence; this is not a position taken in hindsight resulting from the travails of thirteen years of prison life. At Heiser’s initial guilty plea colloquy, the trial judge did not accept the plea because he was concerned as to its voluntariness. “Indeed, at the time, Heiser was asserting his innocence. Heiser contended at this time he acted in self-defense.” So found the district court. See Heiser v. Ryan, 818 F.Supp. 388, 400 (W.D.Pa.1993). At a subsequent colloquy, Heiser’s plea of guilty was accepted. Later, at the trial of his codefendant, Heiser testified that he did not plan to commit a robbery and that the killing was inadvertent; the reason he agreed to plead to the contrary was that he was coerced by his attorneys to do so. Heiser then asked permission to withdraw his plea and proceed to trial. Notwithstanding the pending motion to withdraw his plea, the trial judge sentenced Heiser to, among others, a charge of second degree murder. In a later proceeding, the trial judge stated that he would apply the lenient presentence standard of Pa.R.Crim.P. 320 in adjudicating the motion.
After Heiser was sentenced, his appointed counsel filed a motion to withdraw the plea,1 asserting three reasons:
(A) The Defendant was not informed of the permissible range of sentences that he could receive for the offense; (B) There was no factual basis for accepting the plea; [and] (C) The Defendant was coerced by his counsel into his [accepting] the plea.
App. at 12. Unlike the majority, I find that Heiser’s allegation that the facts did not support the plea, memorialized in a written motion, sufficed to encompass an assertion of innocence.
In Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), the Pennsylvania Supreme Court described the requirements of Pa.R.Crim.P. 319, which governs the conduct of a guilty plea. One of the dictates for acceptance of a guilty plea is that a factual basis exists for its entry, i.e.,
whether the facts acknowledged by the defendant constitute a prohibited offense. This salutary requirement is to prevent a plea where in fact the legal requirements have not been met; and, to name and define the offense, supported by the acts, so the defendant will know the legal nature of the guilt to which he wishes to plead.
Id. at 1307. In Heiser’s case, if robbery was not contemplated nor committed, there was no factual basis for a plea to a felony murder charge. “No factual basis” thus equates to an assertion of innocence to this crime because Heiser did not admit to the fact of a robbery prior to sentencing.
With this proclamation of innocence established, I turn to Pennsylvania caselaw which continues to hold that a “mere assertion of innocence,” absent prejudice to the Commonwealth, is a fair and just reason for with*310drawal of a guilty plea. Commonwealth v. Risk, 414 Pa.Super. 220, 606 A.2d 946, 947 (1992).2 Thus, under the requisites of Pennsylvania criminal procedure, Heiser has presented a meritorious petition to withdraw his guilty plea.
In any event, Heiser’s “open court” claim of innocence relieved him of presenting a written motion to withdraw.3 Commonwealth v. Carr, 375 Pa.Super. 168, 543 A.2d 1232, 1233 (1988), alloc. denied, 520 Pa. 613, 554 A.2d 506 (1988) (no requirement of formal written motion to withdraw plea when defendant’s motion made in open court and reviewable under preseritencing standard).
I also believe that Judge Harper would have allowed Heiser to withdraw his plea. Judge Harper initially rejected the plea when, during Heiser’s colloquy, Heiser refuted the facts in support of the plea. Judge Harper heard a second denial of second degree murder from Heiser when, during the testimony at his codefendant’s trial, Heiser again disputed that he participated in a robbery. As well, Judge Harper’s decision to apply the presentence standard is indicative of his favorable inclination to Heiser’s position.
In any event, I adhere to a reading of Heiser I which permits, the petitioner to raise on remand any legally cognizable reason to withdraw his plea and for this proposition, I rely on our much-quoted “fair and just” language from Heiser I.
The majority concludes that the innocence issue was not raised before the district court. I disagree. In his “Traverse to Commonwealth’s Answer to Petition for Writ of Ha-beas Corpus,” filed prior to any adjudication, Heiser more than adequately set out the circumstances regarding the oral withdrawal of his plea which included his claim of innocence to the facts of the robbery. App. at 285.
Indeed, the district court acknowledged the presence of the innocence issue on remand. The court conducted a preliminary discussion concerning the scope of the Heiser I remand order. Heiser interpreted our opinion as permitting him to pursue any other fair and just reason to withdraw the guilty plea in addition to the voluntariness of the plea. App. at 717. While the court mused that the hearing was limited to determining whether the plea was voluntary, after quoting the “any other fair and just” language, it acknowledged some contradiction in our Heiser I mandate. The court then announced its intention to consider all the circumstances of the plea. App. at 721.4
Nonetheless, in its opinion the district court addressed Heiser’s claim of innocence briefly in a footnote and, there, only in the context of Heiser’s admission that his counsel expressed doubts on the likelihood of a positive outcome. The court noted that, “although it does not affect our decision, Heiser’s self-defense theory is not credible.” 813 F.Supp. at 402, n. 13. The substance of the self-defense theory, however, is of no import to Heiser’s allegation that he asserted innocence as a fair and just reason for plea withdrawal, and the district court misstepped in construing it as such. What is significant, *311however, is that the court believed Heiser s testimony concerning his oral request to withdraw as probative and consistent with the Heiser I mandate to discern any other “fair and just” reason for withdrawal. The Commonwealth apparently chose not to question Heiser on his assertion of innocence but rather rested its case on the voluntariness of the plea issue. The innocence claim was therefore unrebutted by the Commonwealth.
Because the Commonwealth has conceded the lack of prejudice if the plea had been withdrawn when presented, I conclude that Heiser presented a meritorious plea withdrawal petition and has asserted grounds for habeas relief.
II.
I turn now to the other ground for granting habeas relief here — the Doggett presumption of prejudice. In Doggett, the Supreme Court, citing to the more-than-eight-year delay between indictment and arrest, held that Doggett’s indictment should be dismissed for violation of the speedy trial provision, notwithstanding Doggett’s failure to show actual prejudice from the delay.
The district court concluded that the Dog-gett presumption would apply in Heiser’s case, despite its post-conviction cast. The court, however, held that the Commonwealth had overcome the presumption of prejudice by proving that the delay did not affect the outcome of Heiser’s motion to withdraw his plea. I have, of course, concluded to the contrary. Heiser presented a meritorious motion to withdraw his plea which would have been granted.
While it appears to be an issue of first impression, I agree with the district court’s conclusion that the Doggett presumption can be employed post-conviction.5
The Court in Doggett conducted a Barker v. Wingo analysis in the context of a speedy trial violation. There, as here, three of the considerations: length of the delay, the government’s responsibility and the petitioner’s diligence, were weighed in the petitioner’s favor, leaving the question of prejudice decisive.
Before commenting on the prejudice factor, however, I find it necessary to touch on the other Barker considerations, all three of which favor Heiser to a greater extent than they did Doggett. The length of Heiser’s delay, a mathematical fact, was five years longer than the Doggett delay — an “extraordinary delay” as characterized by Heiser I, 951 F.2d at 563.
Second, by virtue of the law of the case of Heiser I, we have a finding that “the reasons [for delay] given by the Pennsylvania courts are simply no excuse.” Id. Because some reason was proffered and because the Commonwealth presented a modicum of evidence that it requested action by the court, I am restrained from finding that the government’s inactivity lead to the level of callous indifference. Nonetheless, I would balance this factor almost totally in Heiser’s favor; frankly, I am appalled at the trial court’s inactivity here and find it to constitute extreme negligence.
Third, while Doggett was unaware of the indictment against him and therefore had no reason to pursue his rights, Heiser religiously petitioned the courts to decide his fate. Thus, the first three Barker factors most strongly favor Heiser’s position.
Regarding the final prejudice factor, the Supreme Court recognized that the most serious form of prejudice is that which results in the impairment of the accused’s ability to lodge a defense. Doggett, — U.S. at -, 112 S.Ct. at 2692. Given that in many post-conviction settings the goal of the defendant is a new trial, this same concern exists. While a prior adjudication of guilty has erased the presumption of innocence, it does not eradicate the potential that the defendant might be unable to defend his case on retrial because of the passage of time. Heiser, incarcerated for thirteen years during which he *312unsuccessfully sought recourse, lost a triable defense — the most profound manifestation of prejudice. Accordingly, the Doggett presumption should be utilized in his favor.
Finally, as the Commonwealth did not rebut the presumption of prejudice, Doggett too supports a grant of the writ.
III.
Because the Commonwealth acknowledges that Heiser would be unable, due to the passage of time, to mount a defense to the charges against him, it concedes an unassailable impediment to Heiser’s defense. The only remedy consistent with the requisites of due process is' that Heiser be discharged from custody and I would so order.
. We dissected this motion, its scope and its non-resolution in Heiser I and concluded that Heiser, on remand, could raise any legally cognizable ground for withdrawal. 951 F.2d at 564.
. The majority does not take a position on whether mere assertion of innocence is a fair and just reason for permitting withdrawal of a guilty plea or whether it is appropriate to apply the state rule in light of the more stringent federal rule.
My review of Pennsylvania law supports a conclusion that "mere assertion of innocence” suffices as a fair and just reason for withdrawal. I do note, however, that recent caselaw, though upholding this precedent, has criticized its leniency. See, e.g., Commonwealth v. Iseley, 419 Pa.Super. 364, 615 A.2d 408, 412 (1992), alloc. denied, 534 Pa. 653, 627 A.2d 730 (Pa. 1993).
. Apparently, at Heiser’s sentencing, Judge Harper advised Heiser to file his motion in writing. However, Heiser’s previous oral request for withdrawal, combined with Judge Harper’s assurance that the pre-sentence standard would apply, support my conclusion that a written motion would be unnecessary to preserve the issue.
.When the actual hearing commenced, the district court did receive evidence concerning Heiser's assertion of innocence. Heiser testified that at the first guilty plea hearing he maintained his innocence as to the underlying felony of robbery, and Judge Harper remarked that under those circumstances he would not accept the plea. App. at 749. When the Commonwealth raised a relevancy challenge to this questioning because it was not relevant to the voluntariness of the plea, Heiser's counsel countered that it supported a fair and just reason to withdraw the plea. The court overruled the objection. App. at 752.
. Although not argued by the parties perhaps because the law of the case of Heiser I may be construed to so preclude, I query whether Heiser's claim is in fact in a post-conviction posture. Because Heiser has presented a meritorious petition to withdraw his guilty plea, he is technically awaiting trial. In this vein, the Doggett concerns that excessive delay compromises the integrity of the trial would be clearly relevant here.