                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-1998

Fiore v. White
Precedential or Non-Precedential:

Docket 97-3288




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Recommended Citation
"Fiore v. White" (1998). 1998 Decisions. Paper 163.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/163


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Filed July 21, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3288

WILLIAM FIORE

v.

GREGORY WHITE, Warden of the State Correctional
Institution at Pittsburgh; THE ATTORNEY GENERAL OF
THE COMMONWEALTH OF PENNSYLVANIA,
       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 96-01231)

Argued on March 9, 1998

Before: STAPLETON and ALITO, Circuit Judges, and
SHADUR, District Judge*

(Opinion Filed: July 21, 1998)



_________________________________________________________________

*Milton I. Shadur, Senior United States District Judge for the Northern
District of Illinois, sitting by designation.
       D. MICHAEL FISHER
       Attorney General
       WILLIAM H. RYAN, JR.
       Executive Deputy Attorney General
       ROBERT A. GRACI
       Chief Deputy Attorney General
       ANDREA F. MCKENNA (Argued)
       Senior Deputy Attorney General

       Office of Attorney General
       15th Floor, Strawberry Square
       Harrisburg, Pennsylvania 17120

       Counsel for Appellants

       JAMES B. LIEBER
       M. JEAN CLICKNER
       Lieber & Hammer
       5528 Walnut Street
       Pittsburgh, PA 15232-2312

       HAROLD GONDELMAN (Argued)
       Plowman Spiegel & Lewis
       The Grant Building
       310 Grant Street
       Pittsburgh, PA 15219-2204

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from an order granting a writ of habeas
corpus to William Fiore, a state prisoner in Pennsylvania.
The district court granted the writ after concluding that
the Supreme Court of Pennsylvania violated Fiore's
constitutional rights by failing to apply one of its decisions
retroactively. Because state courts are under no
constitutional obligation to apply their decisions
retroactively, we reverse.

I.

William Fiore owned and operated a waste disposal
facility in Elizabeth Township, Pennsylvania, during the late

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1970s and early 1980s. In 1983, after the Pennsylvania
Department of Environmental Resources (DER) discovered
that hazardous wastes were seeping into a monitoring pipe
underneath the facility, Fiore instructed the facility's
general manger, David Scarpone, to alter the flow of the
monitoring pipe. The alteration allowed hazardous wastes
to be deposited surreptitiously in a nearby tributary while
clean water flowed through the inspected portion of the
monitoring pipe. State officials discovered the alteration in
1984 and brought criminal charges against Fiore and
Scarpone under the Pennsylvania Solid Waste Management
Act (SWMA), 35 P.S. SS 6018.101.

Among other things, the criminal information charged
that Fiore and Scarpone operated a hazardous waste facility
without a permit in violation of 35 P.S. S 6018.401(a), a
second degree felony under 35 P.S. S 6018.606(f). Although
the state did not dispute the fact that Fiore had obtained a
permit from the DER, Supp. App. at 51, the state proceeded
on the theory that Fiore and Scarpone "so altered the
monitoring system and so significantly departed from the
terms of the permit that the operation of the hazardous
waste facility thereafter was an unpermitted operation." Id.
at 52. Following a jury trial, Fiore and Scarpone were
convicted of operating a hazardous waste facility without a
permit in violation of SS 401(a) and 606(f). After a separate
non-jury trial involving additional allegations of
unauthorized activities, Fiore again was convicted of
operating a hazardous waste facility without a permit in
violation of SS 401(a) and 606(f).1 On April 10, 1987, the
Court of Common Pleas sentenced Fiore to a prison term of
two and one-half to five years, plus ten years' probation, for
the jury-trial conviction under SS 401(a) and 606(f). The
court then sentenced Fiore to a consecutive prison term of
two and one-half to five years, plus ten years' probation, for
the non-jury-trial conviction under SS 401(a) and 606(f). In
addition, the court imposed a fine of $100,000 for each
conviction under SS 401(a) and 606(f).
_________________________________________________________________

1. Between his two trials, Fiore was convicted of sixty counts of
violating
the SWMA and other statutes. Only the S 401(a) convictions are at issue
here.

                               3
On direct appeal to the Pennsylvania Superior Court, 2
Fiore contended that there was insufficient evidence to
sustain his convictions under SS 401(a) and 606(f) in light
of the fact that he possessed a permit to operate a
hazardous waste facility. The Superior Court rejected this
argument and adopted the trial court's reasoning that
Fiore's actions "represented such a significant departure
from the terms of the existing permit that the operation of
the hazardous waste facility was `un-permitted.' " App. 51,
63-64, 125-26. Fiore's convictions became final when the
Supreme Court of Pennsylvania denied his petition for
allowance of appeal on March 13, 1990.

More than a year after Fiore exhausted his direct appeal,
the Commonwealth Court of Pennsylvania reversed
Scarpone's conviction under SS 401(a) and 606(f). Scarpone
v. Commonwealth, 596 A.2d 892, 895 (Pa. Commw. Ct.
1991). The Commonwealth Court concluded that Scarpone
could not be convicted of operating a hazardous waste
facility without a permit when Fiore actually possessed a
permit for the facility. Id. In reaching this conclusion, the
court explained that it would have been more appropriate
to charge Scarpone with violating the terms of a permit, a
first-degree felony under the SWMA. Id. The Supreme Court
of Pennsylvania granted review in Scarpone's case, and
Fiore filed a petition for extraordinary relief asking the
Supreme Court to consolidate his case with Scarpone's.
After denying Fiore's petition, the court affirmed the
reversal of Scarpone's conviction. Commonwealth v.
Scarpone, 634 A.2d 1109, 1112 (Pa. 1993). The court
explained:

       The alteration of the monitoring pipe here was
       execrable and constituted a clear violation of the
       conditions of the permit. But to conclude that the
       alteration constituted the operation of a new facility
       without a permit is a bald fiction we cannot
_________________________________________________________________

2. While the Commonwealth Court normally exercises jurisdiction over
appeals from SWMA convictions, Fiore successfully petitioned to have his
case transferred to the Superior Court. See Commonwealth v. Fiore, 665
A.2d 1185, 1187 (Pa. Super. Ct. 1995). As a result, Fiore and Scarpone
had their appeals heard by different courts.

                               4
       endorse. . . . We agree with the Commonwealth Court
       that the statutory language here cannot be stretched to
       include criminal activities which clearly fall under
       another statutory section or subsection. The
       Commonwealth Court was right in reversing Mr.
       Scarpone's conviction of operating without a permit
       when the facility clearly had one.

Id.

Following the Supreme Court of Pennsylvania's decision
in Scarpone, Fiore again sought extraordinary relief, and
again his application was denied. Fiore then filed a petition
pursuant to the Pennsylvania Post Conviction Relief Act
(PCRA), 42 P.S. S 9541, claiming that what he was "charged
with having done is not a crime as decided by the Supreme
Court of Pennsylvania on these very facts." Supp. App. at
14. The Court of Common Pleas and the Superior Court
both denied Fiore's petition on the ground that
Pennsylvania law does not allow post-conviction relief in
cases where the alleged error was litigated on direct appeal.
Supp. App. at 22; Commonwealth v. Fiore, 665 A.2d 1185,
1192-93 (Pa. Super. Ct. 1995). In addition, the Superior
Court refused to apply the Scarpone decision retroactively
based on state-law principles of retroactivity. Id. at 1193.
The Supreme Court of Pennsylvania subsequently denied
Fiore's petition for allowance of appeal from the Superior
Court's decision.

Fiore then filed a petition for a federal writ of habeas
corpus. The petition presented two issues:

       1. Whether Mr. Fiore was convicted, sentenced and
       incarcerated on the basis of facts which did not
       establish each element of the crime charged.

       2. Whether the Pennsylvania Courts have denied
       Petitioner William Fiore due process and equal rights
       by refusing to grant him the benefit of the
       Pennsylvania Supreme Court's decision in Scarpone.

Report of the Magistrate Judge at 11-12.

The magistrate judge concluded that the Supreme Court
of Pennsylvania's "failure to grant relief pursuant to
Scarpone . . . served to deny Fiore due process of law and

                                5
equal protection of the law." Id. at 20. Accordingly, the
magistrate judge "recommended that Fiore's petition for [a]
writ of habeas corpus be granted" and "further
recommended that the grant of the writ should be
accomplished through the retroactive application of"
Scarpone. Id. at 22. The district court adopted the report
and recommendation of the magistrate judge and ordered
that Fiore be released from the portion of his sentence
pertaining to both the jury and non-jury trial convictions
under SS 401(a) and 606(f).

On appeal, the Commonwealth challenges the district
court's conclusion that the federal Constitution requires
retroactive application of Scarpone. We exercise plenary
review over this purely legal conclusion. Yohn v. Love, 76
F.3d 508, 515 (3d Cir. 1996).

II.

To be eligible for a federal writ of habeas corpus, a state
prisoner must show that "he is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. S 2254(a).3 Fiore contends that he meets this
requirement because, under the Supreme Court of
Pennsylvania's decision in Scarpone, his conduct does not
constitute the crime with which he was charged. See In re
Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process
Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged."). Fiore's
argument would have force had Scarpone been the law in
Pennsylvania at the time of his conviction. However,
Scarpone was decided after Fiore's conviction became final,
and the Pennsylvania courts refused to apply the decision
to Fiore's case based on state retroactivity principles. See
_________________________________________________________________

3. Because Fiore filed his S 2254 petition after April 24, 1996, he is
subject to the additional requirements of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, S 104, 110 Stat. 1214,
1218-19. However, since we conclude that Fiore cannot succeed on the
merits of his claim, we need not decide whether Fiore exhausted his
claim, id. S 104(b), or whether the state courts adjudicated his claim on
the merits. Id. at S 104(d).

                                6
Commonwealth v. Fiore, 665 A.2d 1185, 1193 (Pa. Super.
Ct. 1995). Since "it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991),
Fiore is entitled to relief only if federal law requires
retroactive application of Scarpone.

The district court held, and Fiore maintains on appeal,
that the Due Process and Equal Protection Clauses of the
Fourteenth Amendment require retroactive application of
Scarpone. This conclusion, however, is at odds with the
Supreme Court's longstanding position that "the federal
constitution has no voice upon the subject" of retroactivity.
Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287
U.S. 358, 364 (1932). See Solem v. Stumes, 465 U.S. 638,
642 (1984); United States v. Johnson, 457 U.S. 537, 542
(1982). While the Court has concluded that some federal
criminal decisions should apply retroactively, see Davis v.
United States, 417 U.S. 333, 346-47 (1974); United States
v. United States Coin & Currency, 401 U.S. 715, 724 (1971),
it has made clear that state courts are under no
constitutional obligation to apply their own criminal
decisions retroactively. Wainwright v. Stone, 414 U.S. 21,
23-24 (1973). Thus, just as the Supreme Court has
fashioned retroactivity rules for the federal courts based on
principles of judicial integrity, fairness, andfinality, see
Teague v. Lane, 489 U.S. 288, 304-310 (1989), the state
courts are free to adopt their own retroactivity rules after
independent consideration of these and other relevant
principles. As the Supreme Court explained in Sunburst Oil:

       A state in defining the limits of adherence to precedent
       may make a choice for itself between the principle of
       forward operation and that of relation backward. . . .
       The alternative is the same whether the subject of the
       new decision is common law or statute. The choice for
       any state may be determined by the juristic philosophy
       of the judges of her courts, their conceptions of law, its
       origin and nature. We review not the wisdom of their
       philosophies, but the legality of their acts. . . . [W]e are
       not at liberty, for anything contained in the constitution
       of the United States, to thrust upon those courts a
       different conception of the binding force of precedent or
       of the meaning of judicial process.

                               7
287 U.S. at 364-66 (emphasis added) (citations omitted).

Consistent with the Supreme Court's admonition that
federal courts not require retroactive application of state
judicial decisions, this court has refused to require
application of new state decisions in habeas proceedings. In
Martin v. Warden, Huntingdon State Correctional Institution,
653 F.2d 799 (3d Cir. 1981), the petitioner claimed that the
trial court's jury instructions misstated the requirements of
the Pennsylvania felony-murder rule. Id. at 810. Although
the Supreme Court of Pennsylvania rejected Martin's
argument on direct appeal, it subsequently interpreted the
felony-murder rule in a manner that cast doubt on the
charge given in Martin's case. Id. at 810-11. We rejected
Martin's argument for retroactive application of the new
decision, stating:

       Even were [the new decision] to be given retroactive
       effect . . . it would not be the responsibility of a federal
       court to apply this newly formed state decisional law to
       a state conviction obtained almost a decade ago.
       Martin's remedy on such a claim is not in this court.
       Therefore, under the then-existing Pennsylvania law of
       felony murder, the judge adequately charged the jury
       . . . .

Id. at 811 (emphasis added). Accord Houston v. Dutton, 50
F.3d 381, 385 (6th Cir. 1995) (denying habeas relief to a
state prisoner because "[n]o federal issues are implicated
and no federal question is presented in determining
whether a change in state law is to be applied
retroactively"). In light of this court's decision in Martin, as
well as the Supreme Court's rulings in Sunburst Oil and
Wainwright, we must reject Fiore's argument that the
constitution requires retroactive application of the Scarpone
decision.

Our conclusion is not altered by Fiore's reliance on Davis
v. United States, 417 U.S. 333, 346 (1974). In Davis, the
Supreme Court reviewed a S 2255 petition filed by a federal
prisoner who had been convicted under the Selective
Service Act for failing to comply with an induction order.
On Davis' direct appeal, the Ninth Circuit had concluded
that his induction order was valid and that he could be

                               8
prosecuted for failing to comply with the order. In a
subsequent case, however, the same court found that an
induction order issued under "virtually identical"
circumstances was "illegal and created no duty on[the
defendant's] part to report for induction." Id. at 339-40.
Davis filed a S 2255 petition based on the new Ninth Circuit
decision, and the Supreme Court held that Davis raised a
cognizable claim. The Court explained:

       If [Davis'] contention is well taken, then[his] conviction
       and punishment are for an act that the law does not
       make criminal. There can be no room for doubt that
       such a circumstance inherently results in a complete
       miscarriage of justice and presents exceptional
       circumstances that justify collateral relief under
       S 2255.

Id. at 346-47 (internal quotations and alterations omitted).

Based on Davis, Fiore contends that he is entitled to
retroactive application of the Scarpone decision. However,
Fiore's argument fails to account for the fact that Davis
concerned the interpretation of a federal, not state, statute.
Section 2255 allows federal prisoners to assert habeas
claims if their confinement is "in violation of the
Constitution or laws of the United States." 28 U.S.C. S 2255
(emphasis added). Since Davis claimed that his conviction
resulted from an improper construction of a federal statute,
the Supreme Court allowed him to seek relief without
alleging a violation of the Constitution. See Davis 417 U.S.
at 342-346 (relying solely on the "or laws" language of
S 2255). Fiore, by contrast, must allege a violation of the
Constitution since there is no federal statute at issue in his
case. Given that the Davis Court never mentioned a
constitutional basis for its decision, and given that the
Supreme Court explicitly has held that the Constitution
does not require retroactive application of state criminal
decisions, Wainwright, 414 U.S. at 23-24, we reject Fiore's
contention that he has a due process right under Davis to
have the Scarpone decision applied retroactively.4
_________________________________________________________________

4. In holding that the Davis retroactivity rule is not required by the Due
Process Clause, we join several other circuits. See Young v. United

                               9
We likewise are unconvinced by Fiore's equal protection
argument. Fiore maintains that Pennsylvania is treating
him differently from Scarpone with respect to his
"fundamentally protected right to liberty." Appellee's Br. at
17-18. Admittedly, this argument has intuitive appeal: Fiore
and Scarpone were tried together for the same crime,
convicted on the same facts, and the Pennsylvania courts
have concluded that Fiore can be imprisoned while
Scarpone must be released. Nevertheless, Fiore's equal
protection claim cannot be reconciled with the Supreme
Court's retroactivity jurisprudence. While the Court has
recognized that "the principle of treating similarly situated
defendants the same" should be considered in shaping
federal retroactivity rules, Teague v. Lane, 489 U.S. 288,
304 (1989) (plurality), the Court never has tied application
of this principle to the Equal Protection Clause. In fact, the
Teague rule itself -- which largely denies the benefit of new
constitutional rules to defendants on collateral review, id.
at 310 -- inevitably results in the differential treatment of
defendants who, while convicted at the same time, exhaust
their direct appeals at different times. Were we to accept
Fiore's equal protection argument, we would be casting
doubt on Teague and its progeny. Moreover, we would be
_________________________________________________________________

States, 124 F.3d 794, 799 (7th Cir. 1997); Hohn v. United States, 99
F.3d 892, 893 (8th Cir. 1996), cert. granted on other grounds, 118 S. Ct.
361 (1997); Brennan v. United States, 867 F.2d 111, 121 (2d Cir. 1989).

We note that the Supreme Court recently reaffirmed Davis in Bousley
v. United States, 118 S. Ct. 1604, 1610 (1998). Bousley involved a
federal prisoner who filed a motion under 28 U.S.C. S 2255 seeking
retroactive application of the Supreme Court's interpretation of 18 U.S.C.
S 924(c)(1) in Bailey v. United States, 516 U.S. 137, 144 (1995). The
Bousley Court held that Bailey's interpretation of S 924(c)(1) was fully
retroactive, explaining that "under our federal system it is only
Congress,
and not the courts, which can make conduct criminal." Bousley, 118 S.
Ct. at 1610. See also id. at 1612 (Stevens, J., concurring) (Bailey "did
not change the law. It merely explained what S 924(c) had meant ever
since the statute had been enacted."). Because the Bousley decision
rested on the Supreme Court's understanding of the balance of power in
the federal system, it differs critically from the current case, which
involves a state court's refusal to give retroactive effect to a judicial
interpretation of a state statute.

                               10
carving out an exception to the rule that the "the federal
constitution has no voice upon the subject" of retroactivity.
Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287
U.S. 358, 364 (1932). See Solem v. Stumes, 465 U.S. 638,
642 (1984); United States v. Johnson, 457 U.S. 537, 542
(1982); Wainwright v. Stone, 414 U.S. 21, 23-24 (1973).
Since it is not the role of this court to second guess the
decisions of the Supreme Court, we reject Fiore's claim that
the Equal Protection Clause requires the Scarpone decision
to be retroactively applied.

In sum, we conclude that neither the Due Process Clause
nor the Equal Protection Clause mandates retroactive
application of the Supreme Court of Pennsylvania's decision
in Scarpone. Accordingly, we reverse the district court's
grant of a writ of habeas corpus.

When a decision providing a new interpretation of a state
criminal statute is not made fully retroactive, some
defendants convicted prior to the new interpretation will
almost always continue to suffer the consequences of a
conviction based on conduct that would not constitute a
crime under the new interpretation, and that is the fate
that has befallen Fiore. His situation is particularly striking
because the new interpretation was handed down by the
state courts in his co-defendant's appeal, which happened
to follow a different procedural track. However, any
relaxation of the Pennsylvania rules regarding retroactivity
due to the particular circumstances present in this case
must come from the Pennsylvania courts or the governor.
Although we might be inclined to grant relief if it were
within our power, the limitations of our authority under the
habeas corpus statute prevent us from doing so.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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