Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-7-2007
Black v. DA Philadelphia Cty
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2154
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2154
MICHAEL BLACK
Appellant
v.
DISTRICT ATTORNEY OF PHILADELPHIA CITY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
ROBERT SHANNON, SUPT. SCI MAHANOY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cv-03479)
District Judge: Hon. Ronald L. Buckwalter
Submitted under Third Circuit LAR 34.1(a)
on March 22, 2004
Before: AMBRO, CHERTOFF* and ROTH**, Circuit Judges
(Opinion Filed: September 7, 2007)
*This case was submitted to the panel of Judges Ambro, Chertoff and Roth. Judge
Chertoff resigned before the filing of the opinion. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
**The Honorable Jane R. Roth assumed senior status on May 31, 2006.
OPINION
ROTH, Circuit Judge:
In this habeas action under 28 U.S.C. § 2254, appellant Michael Black alleges a
violation of his due process rights by his conviction based on a guilty plea for conduct that
was not criminal. Black pled guilty to various crimes, including a violation of the
Pennsylvania Corrupt Organizations Act (the PCOA), 18 Pa. C.S. §911 et seq., based on the
operation of his wholly illegal enterprise of cocaine distribution. Seven years later, the
Supreme Court of Pennsylvania held that the PCOA does not apply to wholly illegitimate
enterprises. Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996). The Pennsylvania Supreme
Court has since held that Besch relates back to the enactment of the PCOA. Kendrick v. Dist.
Att’y of Philadelphia County, 916 A.2d 529, 541 (Pa. 2007).
Consistent with Kendrick, we find that Black did not receive valid notice of the
charges against him and that his actual innocence of the charge of violation of the PCOA
justifies equitable tolling of the statute of limitations. Accordingly, we will vacate the
District Court’s order denying habeas relief and remand this matter to the District Court.
I. BACKGROUND
On July 10, 1989, Black pled guilty to third-degree murder, possessing an instrument
of crime (PIC), possession with intent to deliver a controlled substance (PWID), criminal
conspiracy and violating the PCOA. Pursuant to the plea agreement, he was sentenced to
consecutive sentences of ten to twenty years each for the third degree murder and PCOA
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violation convictions, concurrent sentences of five to ten years each for the PWID and
conspiracy convictions, and a concurrent sentence of two to five years for PIC.
On January 15, 1997, Black filed a pro se petition under Pennsylvania’s Post
Conviction Relief Act (PCRA), 42 Pa. C.S. §9541, et seq. The PCRA court dismissed the
amended petition on June 25, 1998. The Superior Court affirmed this decision on September
28, 1999. Commonwealth v. Black, 747 A.2d 408 (Pa. Super. 1999). On August 21, 2000,
the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Black, 766 A.2d
1243 (Pa. 2000).
On March 22, 2001, Black filed an Application for Leave to File Original Process and
Petition for Writ of Habeas Corpus in the Supreme Court of Pennsylvania. The court granted
his petition for leave but denied the habeas petition. Black v. Shannon, No. 40 EM 2001,
June 11, 2001.
On July 12, 2001, Black filed the instant Petition for Writ of Habeas Corpus, arguing
that his guilty plea to the state law crime of violating the PCOA was not knowing and
intelligent and/or the evidence was insufficient to sustain his conviction since his was a
wholly illegitimate enterprise and the Pennsylvania Supreme Court ruled, seven years after
his guilty plea, that the PCOA does not apply to wholly illegitimate enterprises. See
Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996).
In a Memorandum and Order dated April 4, 2002, the District Court held that (1)
Black was not entitled to equitable tolling of the Anti-terrorism and Effective Death Penalty
Act (AEDPA) statute; (2) Besch announced a new rule of law that was not retroactively
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applicable to Black’s PCOA conviction; (3) Black was not actually innocent of violating the
PCOA.
We granted a certificate of appealability to Black on the question of “whether the
District Court erred by refusing to equitably toll the one-year period of limitation prescribed
in 28 U.S.C. §2244(d)(1) based on Appellant’s claim that he is actually innocent of violating
the Pennsylvania Corrupt Organizations Act as interpreted in Commonwealth v. Besch, 674
A.2d 655 (Pa. 1996).” Because the resolution of this case depended on whether the rule in
Besch applies retroactively, a question then pending before the Pennsylvania Supreme Court
after being certified to them by this Court in Kendrick v. Dist. Att’y of Philadelphia County,
916 A.2d 529 (Pa. 2007), we held Black’s appeal curia advisari vult pending the resolution
of that question.
The Pennsylvania Supreme Court has now concluded that the rule in Besch applies
retroactively, relating back to the day of enactment. Id. at 538-39.
Following the issuance of the Pennsylvania Supreme Court’s decision in Kendrick,
we asked the parties to file memoranda regarding the effect of the decision on this case. In
his response, Black argues that the decision in Kendrick shows that Besch represents the
meaning of the PCOA at the time Black pleaded guilty and that his conviction should
therefore be set aside. The Commonwealth agrees that the conviction should be vacated and
asks that we remand for resentencing.
II. DISCUSSION
The District Court had jurisdiction over this habeas action under 28 U.S.C. §§ 2241(a)
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and 2254(a). We have appellate jurisdiction under 28 U.S.C. § 2253. Our review of the
timeliness of a federal habeas application is plenary, Hartmann v. Carroll, 492 F.3d 478,
478 (3d Cir. 2007), as is the standard for review of a decision to grant or deny equitable
tolling. Brinson v. Vaughn, 398 F.3d 225, 231 (2005).
The two questions to be addressed before relief may be granted are (1) whether
Black’s claim is barred by his delay in filing for habeas relief, and (2) whether Black’s guilty
plea was involuntary because it was made without a valid disclosure of the charge he faced.
Petitions for habeas relief must be filed within one year of the date on which the state
court judgment became final. 28 U.S.C. § 2244(d)(1). For judgments that became final prior
to the enactment of the AEDPA, the one year statute of limitations runs from April 24, 1996,
the date of enactment of AEDPA. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). The
running of the statute of limitations is tolled while state court post-conviction review is
pending. Black concedes that, while the statute of limitation was tolled several times for
appeals in state court, he did not file within the statute of limitations. His filing for habeas
relief is therefore time barred unless it qualifies for equitable tolling.
We have held that equitable tolling may be applied where principles of equity would
make rigid application of the statute unfair. Miller v. New Jersey State Department of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Generally this will occur when the appellant
has been prevented from asserting his rights in some extraordinary way. Id. Here, the rigid
application of the statute would result in upholding a sentence for a crime that in fact was not
a crime. Such a result would be manifestly unjust, and so we find that equitable tolling of
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the statute of limitations is appropriate.
A guilty plea can not support a judgment of guilt unless it was made voluntarily. The
plea can not be voluntary in a constitutional sense if the defendant did not receive “real
notice of the nature of the charge against him.” Henderson v. Morgan, 426 U.S. 637, 644-45
(1976). Here, defendant pled guilty to violating the PCOA believing that the statute could
be applied to his cocaine distribution business. Under Besch, conduct of an entirely
illegitimate enterprise does not violate the PCOA. Commonwealth v. Besch, 674 A.2d 655,
661 (Pa. 1996). According to Kendrick, the rule in Besch applies to Black’s PCOA
conviction. Thus, the notice given to Black of the nature of the charge against him
incorrectly suggested that he could have violated the PCOA, rendering his guilty plea
constitutionally invalid.
III. CONCLUSION
The District Court’s denial of the writ of habeas corpus will be vacated and this matter
remanded to the District Court (1) to grant habeas relief unless the Commonwealth chooses
to permit Black to withdraw his guilty plea on the PCOA count and (2) to take such further
action on the remaining counts as it deems appropriate.
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