                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                                  No. 06-4771
                                _______________

                             CLARENCE JOHNSON,

                                             Appellant

                                        v.

                       JAMES WYNDER, JR., Superintendent;
                       THE DISTRICT ATTORNEY OF THE
                         COUNTY OF PHILADELPHIA;
                       THE ATTORNEY GENERAL OF THE
                          STATE OF PENNSYLVANIA
                               _______________

                 On Appeal from the United States District Court
                    For the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 06-cv-04396)
                   District Judge: Honorable Robert F. Kelly
                               _______________

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 17, 2010
                              _______________

          Before: AMBRO, FISHER, and GREENBERG, Circuit Judges

                         (Opinion filed December 1, 2010)
                                _______________

                                   OPINION
                                _______________

AMBRO, Circuit Judge
       Petitioner-Appellant Clarence Johnson appeals the District Court‟s decision

dismissing his petition for a writ of habeas corpus for lack of jurisdiction. For the

reasons that follow we conclude that Johnson should be permitted to file a second habeas

petition, and therefore remand for further proceedings.

                                    I.     Background

       This appeal stems from a 1988 Pennsylvania jury trial, in which Johnson was

found guilty of having arranged the murder of John Philson, a doorman/lookout at an

illegal lottery house. Following that trial, Johnson was found guilty of first degree

murder, criminal conspiracy, and violation of the Pennsylvania Corrupt Organizations

Act (“PACOA”). He was sentenced to life in prison on the murder charge, and

concurrent sentences of five to ten years‟ imprisonment for each of the other charges. Of

relevance to this appeal, the PACOA charge related solely to the operation of the lottery

house, which was undisputedly an illegitimate enterprise.

       Johnson unsuccessfully appealed his conviction, which became final on June 1,

1993. Johnson then filed a petition under Pennsylvania‟s Post Conviction Relief Act

(“PCRA”) in July 1993. That petition was denied in January 1997, and Johnson‟s appeal

from that denial to the Pennsylvania Superior Court was rejected in March 1998. The

Pennsylvania Supreme Court refused further review.

       While the PCRA petition was pending, several relevant changes in the law took

place. First, in 1995 Pennsylvania amended the PCRA to require that petitions under that

statute be filed within the later of one year after the date a relevant conviction becomes

final, or 60 days after particular triggering events (such as the discovery of new facts or

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the announcement of a new, and retroactive, constitutional right). 42 Pa. Cons. Stat.

§ 9545(b)(1)-(2). Second, in Commonwealth v. Besch, the Supreme Court of

Pennsylvania held that the PACOA “does not encompass the prosecution of a wholly

illegitimate enterprise,” such as the illegal drug ring at issue in that case. 544 A.2d 655,

661 (1996).

       In June 1999, Johnson filed his first federal habeas petition in the District Court.

It raised a variety of claims, but did not argue that his PACOA conviction was improper

under Besch. The petition was denied with prejudice in February 2000, and our Court

then declined to issue a certificate of appealability.1

       In August 2004, Johnson filed a second PCRA petition in Pennsylvania state court.

It argued that, under Besch, Johnson‟s PACOA conviction was wrongful. The Court of

Common Pleas rejected Johnson‟s PCRA petition as untimely in 2006. The Pennsylvania

Superior Court echoed that conclusion on appeal, though it also noted that the substance

of the petition was “unquestionably meritorious.”

       In October 2006, Johnson filed another habeas petition with the District Court, in

which he argued that his PACOA conviction violated the Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution because he was actually innocent of that

offense. However, Johnson did so without seeking authorization from our Court. The

District Court therefore concluded that it lacked subject matter jurisdiction over

Johnson‟s “second or successive” petition, 28 U.S.C. § 2244(b)(3).


1
 Johnson later moved in our Court for authorization to file a successive habeas petition,
28 U.S.C. § 2244(b)(3), but we refused authorization in April 2002.
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       In August 2007, we granted Johnson a certificate of appealability, and in

September 2009 specified two issues to be briefed: 1) whether Johnson needed prior

authorization to file his successive petition; and 2) whether his actual innocence claim

ripened after Besch was decided in 1996 or whether it did not ripen until February 2007,

when the Pennsylvania Supreme Court held in Kendrick v. Dist. Att’y of Phila. Cty., 916

A.2d 529, 541 (Pa. 2007), that Besch did not establish a new rule of law, and therefore

applied retroactively.

                                    II.     Discussion

       Johnson‟s appointed counsel states that Johnson was “required to apply to [our]

Court to obtain permission to file a second or successive habeas petition” under 28

U.S.C. §2244(b)(2), but that he failed to do so. However, we do not find the issue to be

so clear. As the Commonwealth‟s counsel notes (with a candor we much appreciate), a

subsequent habeas petition may not constitute a “second or successive” petition for

purposes of 28 U.S.C. § 2244(b) when it raises an issue that was not yet ripe when the

first petition was filed. Plainly, this exception implicates the second question posed in

our certificate of appealability—whether Johnson‟s PACOA claim ripened when Besch

was decided in 1996, or when Kendrik was decided in 2007. Accordingly, we will first

address whether there is a ripeness exception to the requirements of § 2244(b), and then

whether this case satisfies the requirements of that exception.

       In Panetti v. Quarterman, the United States Supreme Court addressed the

application of § 2244(b) to a prisoner‟s claim, advanced for the first time in a second

habeas petition, that he was mentally incompetent to be executed under Ford v.

                                             4
Wainwright, 477 U.S. 399 (1986). 551 U.S. 930, 938 (2007). The Court held that

Panetti‟s petition was not “second or successive” for purposes of § 2244(b) because his

Ford claim was not yet ripe when he filed his earlier habeas petition. Id. at 947. Thus, it

refused to force prisoners to pursue the “empty formality” of filing unripe Ford claims

with their first habeas petitions, reasoning that such a practice would “not conserve

judicial resources, „reduc[e] peacemeal litigation,‟ or „streamlin[e] federal habeas

proceedings.‟” Id. at 946 (citing Burton v. Stewart, 549 U.S. 147, 154 (2007)).

       We see no reason to avoid applying Panetti in the context of other types of claims

that ripen only after an initial federal habeas petition has been filed. However, for the

reasons that follow, we conclude that Johnson‟s PACOA claim was ripe when he filed his

first federal habeas petition in June 1999.

       At the outset, we note that, under Pennsylvania law as it stood in June 1999, it

would have been difficult or impossible for Johnson to demonstrate his actual innocence

of the PACOA charge.2 However, that a legal argument is unlikely to succeed, or is even


2
  Soon after Besch was filed, the Pennsylvania legislature amended the PACOA to make
clear that it applied to both legitimate and illegitimate enterprises. Kendrick, 916 A.2d at
534. Thereafter, the Pennsylvania Superior Court applied that amendment retroactively,
holding that its effect had been to clarify that Besch had been incorrect all along. Id. at
535 (citing Commonwealth v. Shaffer, 696 A.2d 179, 186 (Pa. Super. Ct. 1997) (Shaffer
I)). That was the state of the law until July 1999, when the Pennsylvania Supreme Court
reversed Shaffer I, holding that the legislative amendment to the PACOA applied only
prospectively. Shaffer, 734 A.2d at 843-44 (Shaffer II). Further, though the
Pennsylvania Supreme Court in Shaffer II ultimately applied Besch retroactively, see
Shaffer I, 696 A.2d at 180-81 (indicating that events that led to the conviction at issue in
Shaffer occurred prior to 1996), it was not until Kendrick that it was clear that Besch
simply clarified the meaning of the PACOA as initially drafted rather than stating a new
rule of law. 916 A.2d at 535. Thus, when Johnson filed his federal habeas petition in
June 1999, he may have been unable to demonstrate that the PACOA had been applied to
                                              5
futile, does not make it unripe. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)

(noting that, if granted, a Fed. R. Civ. P. 60(b) motion based on “a purported change in

the substantive law governing the claim” would improperly circumvent § 2244(b)‟s

requirement that successive claims be “precertified by the court of appeals”). In that

regard, we note that Kendrick itself arose in the context of a federal habeas petition in

which the petitioner argued that Besch should be applied retroactively. In response to

that argument, we certified the Besch retroactivity question to the Pennsylvania Supreme

Court, but we did not dismiss the petition as unripe. 916 A.2d at 531. Accordingly, we

agree with the District Court that Johnson‟s 2006 habeas petition was a “second or

successive” petition within the meaning of 28 U.S.C. § 2244(b)(2), and therefore Johnson

was required to seek leave from our Court before proceeding with that petition.3

       However, we think that Johnson has met the requirements of 28 U.S.C.

§ 2244(b)(2)(B), and thus is entitled to file a second habeas petition raising his PACOA

claim. As the Pennsylvania Superior Court has recognized, Johnson‟s claim that he was

wrongfully convicted under the PACOA is “unquestionably meritorious.” Further, the

United States Supreme Court has held under similar factual circumstances that it is

inconsistent with the Federal Due Process Clause for Pennsylvania to “convict [someone]

for conduct that its criminal statute, as properly interpreted, does not prohibit.” Fiore v.

him improperly.
3
 Anticipating that conclusion, Johnson argues that instead of dismissing his petition, the
District Court was required to transfer it to this Court so that we could construe it as a
motion to file a second or successive habeas petition and then rule on that motion.
However, that question was not included in our certificate of appealability, and, in any
event, it is not necessary to reach that issue.
                                              6
White, 531 U.S. 225, 228-29 (2001) (observing that “conviction and continued

incarceration” based on Pennsylvania courts‟ earlier misinterpretation of a criminal

statute violated due process). Notably, Pennsylvania does not appear to disagree with

this conclusion, as it has stated in its brief to our Court that “the Commonwealth would

likely be amenable to a conditional grant of habeas relief, intended to vacate Johnson‟s

conviction under the PACOA.” Br. of Appellees at 27-28.

       Accordingly, we hereby grant Johnson permission to proceed with his second

habeas petition in the District Court and remand for further proceedings. In that regard,

we note our decision in McKeever v. Warden, SCI-Graterford, 486 F.3d 81 (3d Cir.

2007)—another case involving an improper conviction under the PACOA as interpreted

in Besch—in which we affirmed the District Court‟s decision to grant a writ of habeas

corpus and then stay the grant for a period of 180 days so that the Commonwealth courts

could vacate the PACOA conviction and resentence the defendant. Id. at 83.

                                      * * * * *

       Accordingly, we vacate and remand so that Johnson may pursue his second federal

habeas petition.




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