                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                 NOT PRECEDENTIAL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

                                             3
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)

                                              4
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

                                                5
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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