                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2007

McKeever v. Warden Graterford
Precedential or Non-Precedential: Precedential

Docket No. 05-2492




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"McKeever v. Warden Graterford" (2007). 2007 Decisions. Paper 1034.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1034


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                             PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 05-2492


                    VICTOR MCKEEVER,
                                             Appellant

                               v.

              WARDEN SCI-GRATERFORD;
                 ATTORNEY GENERAL,
          COMMONWEALTH OF PENNSYLVANIA;
           DISTRICT ATTORNEY, ERIE COUNTY


On Appeal from the Judgment of the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Civ. No. 04-cv-03567)
         District Judge: Honorable Paul S. Diamond


                   Argued: February 1, 2007

          Before: BARRY, ROTH, Circuit Judges, and
                IRENAS,* Senior District Judge.

                     (Filed: May 10, 2007)




      *
        Honorable Joseph E. Irenas, Senior United States District
Judge for the District of New Jersey, sitting by designation.

                               1
Gene C. Schaerr, Esq. (Argued)
Winston & Strawn LLP
1700 K St., NW
Washington, D.C. 20006

Counsel for Appellant

Andrea F. McKenna, Esq. (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square, 16th Floor
Harrisburg, PA 17120

Counsel for Appellees
                        _____________

                  OPINION OF THE COURT
                      _____________

IRENAS, Senior United States District Judge.

        Appellant Victor McKeever pleaded guilty in 1995 to
drug-related charges, including two counts arising under the
Pennsylvania Corrupt Organizations Act (“PACOA”), 18 Pa.
C.S.A. § 911(b)(3). He was sentenced to 15-42 years’
imprisonment. In 1996, the Supreme Court of Pennsylvania held
that PACOA does not apply to individuals operating wholly
illegitimate businesses. Commonwealth v. Besch, 674 A.2d 655
(Pa. 1996). McKeever, falling within that class of persons, filed
a habeas corpus petition on July 28, 2004, pursuant to 28 U.S.C.
§ 2254, in the Eastern District of Pennsylvania. He now appeals
the District Court’s Order granting his writ of habeas corpus and
staying the writ for 180 days so that the Commonwealth of
Pennsylvania could vacate McKeever’s PACOA convictions and
resentence him or, alternatively, release him from incarceration.
For the reasons set forth below, we will affirm.

                                 I.

       The District Court had jurisdiction over McKeever’s
habeas petition under 28 U.S.C. § 2254. We have jurisdiction
over his appeal pursuant to 28 U.S.C. §§ 1291, 2253. Because

                                 2
the District Court did not hold an evidentiary hearing on
McKeever’s sentencing claims, we review its legal conclusions
de novo. See Outten v. Kearney, 464 F.3d 401, 413 (3d Cir.
2006); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

                               II.

        On January 13, 1995, the Commonwealth of
Pennsylvania filed an 11-count Information against McKeever
arising out of his possession and delivery of heroin. (16).1 He
was charged with six counts of delivery of a controlled
substance, one count of dealing in proceeds of unlawful
activities, one count of criminal conspiracy to violate the state
Drug Act, one count of possession of a controlled substance, and
two counts of violating the Pennsylvania anti-racketeering
statute, PACOA. McKeever pleaded guilty on July 24, 1995, to
ten counts in exchange for the Commonwealth’s promise not to
object to a sentencing scheme set forth in the agreement.2 (21).
Under the scheme, McKeever’s two PACOA counts merged
with each other, and were made concurrent with one of the six
drug delivery counts. They did not have any effect on the actual
length of his sentence. The drug delivery counts were made
consecutive with each other, and concurrent with the criminal
conspiracy and drug dealing charges. 3

       1
       The referenced page numbers correspond to Appellant’s
Appendix.
       2
         At the time of McKeever’s plea, the Commonwealth
withdrew Count XI, possession of a controlled substance. (49).
       3
         The details of the sentencing scheme as set forth in the
plea agreement are as follows: Count I (dealing in proceeds of
unlawful activities): 1-5 years concurrent with Count V; Count II
(PACOA): 1-7 years merged with Count III and concurrent with
Count V; Count III (PACOA): 1-7 years merged with Count II and
concurrent with Count V; Count IV (criminal conspiracy): 2-7
years concurrent with Count V; Count V (delivery of a controlled
substance): 2-7 years consecutive to McKeever’s then current
sentence; Count VI (delivery of a controlled substance): 2-7 years
consecutive to Count V; Count VII (delivery of a controlled

                                3
        In 1996, the Supreme Court of Pennsylvania held that
PACOA did not apply to individuals who operated wholly
illegitimate businesses. Commonwealth v. Besch, 674 A.2d 655
(Pa. 1996). Later that year, the Pennsylvania legislature,
responding to this interpretation, amended PACOA to apply to
businesses with wholly illegitimate operations. (34-40); 18 Pa.
C.S.A. § 911 (1997). In 1999, however, the Supreme Court of
Pennsylvania held that the amended act was to be applied
prospectively only. Commonwealth v. Shaffer, 734 A.2d 840,
843 (Pa. 1999).

       McKeever, on January 23, 2003, collaterally challenged
his sentence under the Pennsylvania Post Conviction Relief Act
(“PCRA”) asserting: (1) that his guilty plea was based upon
mutual mistake of fact; (2) that he was not liable under PACOA
because he operated a wholly illegitimate business; and (3) that
his guilty plea should be rescinded.

       The Court of Common Pleas, Erie County, dismissed the
PCRA petition as untimely and not subject to any exceptions
under 42 Pa. C.S.A. § 9545(b)(1). (80). It held that McKeever’s
petition would have been timely if filed by January 16, 1997,
one year from the effective date of the amendments to PACOA.4
Because, however, it was filed on January 21, 2003, more than
six years from that date, it was untimely. (82-83). The Superior
Court of Pennsylvania affirmed. (87).


substance): 3-7 years consecutive to Count VI; Count VIII
(delivery of a controlled substance): 2-7 years consecutive to Count
VII; Count IX (delivery of a controlled substance): 3-7 years
consecutive to Count VIII; Count X (delivery of a controlled
substance): 3-7 years consecutive to Count IX.
       4
          Pursuant to 42 Pa. C.S.A. § 9545, a PCRA petition must
be filed within one year of the date the judgment becomes final.
Under a proviso of the 1995 amendments to the PCRA, if the
judgment of sentence becomes final before January 1996, the
effective date of the amendments, a petitioner has one year from
the effective date of the act to file a first PCRA petition. McKeever
qualified for this proviso, but failed to file his petition by January
16, 1997. (88-89).

                                  4
        On July 28, 2004, McKeever filed a habeas corpus
petition, pursuant to 28 U.S.C. § 2254, in the Eastern District of
Pennsylvania. He alleged that under Pennsylvania statutory and
case law, he was actually innocent of the two PACOA counts
included in his plea agreement. (91-95). Magistrate Judge Hart
issued a Report and Recommendation finding that the District
Court had jurisdiction to hear the case, that McKeever should be
excused from exhausting all state court remedies, that his
petition was not time-barred, and that he was actually innocent
of the two PACOA counts.5 (126-32). Magistrate Judge Hart
recommended that the District Court grant McKeever’s petition
and order the state court to vacate the two PACOA convictions
and resentence McKeever accordingly. (132). McKeever
objected to the Report and Recommendation of Magistrate Judge
Hart, and argued that the appropriate remedy was the rescission
of the 1995 plea agreement. (133).

        On March 23, 2005, Judge Diamond issued an Order,
with an attached Memorandum, adopting the Report and
Recommendation by Magistrate Judge Hart, granting the writ of
habeas corpus relief, and staying execution of the writ for 180
days to permit the Commonwealth to fashion the appropriate
remedy. (3-4). McKeever moved to alter or amend the Order on
the ground that the Commonwealth did not attach the District
Court’s memorandum when filing a Motion for Resentencing
Hearing in the State Court on March 29, 2005. He asserted that
in its motion, the Commonwealth misrepresented the District
Court’s Order, in that the Commonwealth stated that the District
Court ordered re-sentencing, rather than leaving the remedy to
the state’s discretion. (159-161). The District Court, on April
11, 2005, denied McKeever’s motion, noting again that it does
not have the power to order the state to provide a specific
remedy. (156). McKeever now appeals the District Court’s
Order.


       5
          The Third Circuit has not yet decided whether a claim of
actual innocence may equitably toll the one-year filing period
under 28 U.S.C. § 2244(d). Because the Commonwealth conceded
this issue, it is not before the Court at this time.

                                5
       On April 26, 2005, McKeever was resentenced in the
Court of Common Pleas of Erie County to an aggregate term of
15 to 42 years in prison. The Court of Common Pleas denied
various motions filed prior to re-sentencing, including a motion
to withdraw his guilty plea.6 (Appellee’s App’x, Doc. A).
McKeever appealed, and the Superior Court affirmed.
(Appellee’s App’x, Doc. B). McKeever then filed a petition for
allowance of appeal, which was denied by the Supreme Court of
Pennsylvania on September 13, 2006. Commonwealth v.
McKeever, 907 A.2d 1101 (Pa. 2006).

                                III.

      McKeever contends that his guilty plea violated the Due
Process Clause, U.S. Const. Amend. 14, because it was not
knowing and voluntary in light of the fact that, based upon a
subsequent judicial decision, he was actually innocent of the two
PACOA counts to which he pled guilty, and that the appropriate
remedy is rescission of his guilty plea in its entirety.

        First, we note that the District Court was correct in
granting McKeever’s writ of habeas corpus but leaving the
precise remedy in the hands of the Commonwealth. “Both the
historic nature of the writ and principles of federalism preclude a
federal court’s direct interference with a state court’s conduct of
state litigation. . . . A habeas court does not have power to
directly intervene in the process of the tribunal which has
incorrectly subjected the petitioner to the custody of the
respondent official.” Barry v. Brower, 864 F.2d 294, 300-01 (3d
Cir. 1988) (internal citation omitted); see also, Dunn v. Colleran,
247 F.3d 450, 462 (3d Cir. 2001); Dickerson v. Vaughn, 90 F.3d
87, 92 (3d Cir. 1996)(“[A] state should be given the opportunity
to correct its own errors and federal remedies should be designed

       6
         In an opinion written by the Court of Common Pleas on
June 29, 2005, the Court noted that McKeever’s initial post-
sentence motion on January 23, 2003, to withdraw his plea was
untimely, and that even if it were timely, it should not now be
granted because the plea was knowing, intelligent, and voluntary,
and thus McKeever did not suffer prejudice as a result of the initial
denial of this motion. (Appellee’s App’x, 18-23).

                                 6
to enable state courts to fulfill their constitutional obligations to
the defendant.”); Heiser v. Ryan, 15 F.3d 299, 306 (3d Cir.
1994).

        In granting the writ of habeas corpus, the District Court
left the choice of remedy to the state court. (11-13). McKeever
argues that the District Court erroneously failed to order the state
court to vacate his guilty plea in its entirety and either retry or
release him. He contends that his guilty plea should be vacated
in its entirety because it was premised on the belief of both
parties that he was guilty of the two PACOA counts and was,
therefore, neither voluntarily or intelligently made. However,
Brady v. United States, 397 U.S. 742 (1970), held that a plea
need not be vacated due to a subsequent change in the statute
upon which only part of the plea was premised.

       [J]udgments may be made that in the light of later
       events seem improvident, although they were
       perfectly sensible at the time. The rule that a plea
       must be intelligently made to be valid does not
       require that a plea be vulnerable to later attack if
       the defendant did not correctly assess every
       relevant factor entering into his decision. A
       defendant is not entitled to withdraw his plea
       merely because he discovers long after the plea has
       been accepted that his calculus misapprehended
       the quality of the State’s case or the likely
       penalties attached to alternative courses of action.
       More particularly, absent misrepresentation or
       other impermissible conduct by state agents, a
       voluntary plea of guilty intelligently made in the
       light of the then applicable law does not become
       vulnerable because later judicial decisions
       indicate that the plea rested on a faulty premise.

Brady, 397 U.S. at 756-57 (internal citation omitted)(emphasis
added). We decline to adopt a rule that renders a multi-count
plea agreement per se invalid when a subsequent change in the
law renders a defendant innocent of some, but not all, of the
counts therein and reject the argument that such a plea could
never be entered by a defendant voluntarily and intelligently.

                                  7
       McKeever suggests that because the plea agreement was
based upon a mutual mistake, it should be rescinded. Ordinary
contract law principles are applicable to disputes over plea
agreements, provided that the defendant is also afforded the
protections of due process. See United States v. Floyd, 428 F.3d
513, 516 (3d Cir. 2005); see also, United States v. Bownes, 405
F.3d 634, 636 (7th Cir. 2005); United States v. Brunetti, 376
F.3d 93, 95-96 (2d Cir. 2004) (per curiam); United States v.
Sar-Avi, 255 F.3d 1163, 1166-67 (9th Cir. 2001); United States
v. Giorgi, 840 F.2d 1022, 1025 (1st Cir. 1988). The Restatement
(Second) of Contracts § 152 (1981) defines mutual mistake as
follows:

      (1) Where a mistake of both parties at the time a
      contract was made as to a basic assumption on
      which the contract was made has a material effect
      on the agreed exchange of performances, the
      contract is voidable by the adversely affected party
      unless he bears the risk of the mistake under the
      rule stated in § 154.
      (2) In determining whether the mistake has a
      material effect on the agreed exchange of
      performances, account is taken of any relief by
      way of reformation, restitution, or otherwise.

Id. (emphasis added).

        First, this Court notes that contrary to McKeever’s
contention, the mistake here was one of law, not fact. Moreover,
the mistake was not material. McKeever admits that had it not
been for the mistake, he “may, or may not, have pleaded guilty
rather than risk trial.” (Appellant’s Brief, 8). Pursuant to the
Restatement (Second) of Contracts § 152 cmt. c (1981), “[i]t is
not enough for [a party] to prove that he would not have made
the contract had it not been for the mistake. He must show that
the resulting imbalance in the agreed upon exchange is so severe
that he can not fairly be required to carry it out.” Based upon
this standard and McKeever’s own admission, the mistake of law
clearly did not have a “material effect” on the plea agreement.


                               8
        In Brady, the Supreme Court refused to vacate a plea
agreement on the grounds that part of the statute to which
petitioner pled was later deemed unconstitutional, despite the
fact that petitioner may have relied upon it in informing his
bargaining position. “[E]ven if we assume that Brady would not
have pleaded guilty except for the death penalty provision of [the
statute], this assumption merely identifies the penalty provision
as a ‘but for’ cause of his plea. That the statute caused the plea
in this sense does not necessarily prove that the plea was coerced
and invalid as an involuntary act.” Brady, 397 U.S. at 750.7
Thus, even if the PACOA counts informed McKeever’s
bargaining position, and were the “but for” cause of his decision
to plead guilty, this does not rise to the level of materiality
necessary to avoid the agreement in its entirety.

        This conclusion is supported by the record, which reflects
that the heart of McKeever’s plea agreement was not the
PACOA charges, but rather the drug trafficking charges. In fact,
the bargain struck in the plea agreement resulted in a minimum
sentence of fifteen years and a maximum of forty-two years.
When resentencing, the Court sentenced McKeever to the same
aggregate scheme, despite the removal of the PACOA counts.
This occurred because, in the original sentencing scheme, the
two PACOA counts were merged with each other and concurrent
with a count for delivery of a controlled substance. They carried
no mandatory minimum sentence, unlike each of Counts V
through X, the delivery of a controlled substance counts. See 18
Pa. C.S.A. § 7508(a)(7)(i) and (ii). Nor did the PACOA counts

       7
          The dissent attempts to distinguish Brady’s strong holding
by suggesting that it can be marginalized because it did not involve
a situation where, due to a subsequent change in the law, defendant
was actually innocent of a law to which he pleaded guilty. Rather,
it involved a subsequent determination that a law was invalid
because it allowed defendant to avoid the death penalty by pleading
guilty. In Brady, however, defendant’s decision to plead guilty
was based, at least in part, on the opportunity to avoid the death
penalty. His failure to anticipate the change in law clearly had a
much greater impact than it did on McKeever, where the PACOA
counts neither impacted the length of his sentence nor were a
central component of the bargain.

                                 9
carry a higher maximum sentence or a greater mandatory fine
than Count I, which charged McKeever with dealing in the
proceeds of unlawful activities. Moreover, the sentencing
scheme and the nature of the crimes themselves make it clear
that the prosecution of McKeever was fundamentally based upon
his delivery of heroin.

       The dissent assumes that the parties were mistaken as to
the reach of PACOA at the time the plea was entered, and would
require that the plea be voidable. The premise of the dissent’s
argument, however, is flawed. First, at the time the plea
agreement was made, PACOA did, in fact, cover McKeever’s
conduct. No party was mistaken in his understanding of this.
The law did not change until after McKeever pled and was
sentenced.

        In support of its theory, the dissent relies on United States
v. Bradley, 381 F.3d 641 (7th Cir. 2004). In Bradley, defendant
pled guilty to both counts of his two-count indictment. The
Court of Appeals held that there was a mutual mistake when “no
one understood an essential element of the crime with which Mr.
Bradley was charged” at the time of the plea agreement. Id. at
647. Similarly, the dicta in Bousley v. United States, 523 U.S.
614 (1998), cited by the dissent, indicates that when a court
accepts a guilty plea from a defendant to a crime, the elements of
which neither he, his counsel, nor the court correctly understood,
the plea would violate the Due Process Clause. Id. at 618-19.
Neither of these decisions address the due process implications
of vacating counts based upon a subsequent change in the law
that rendered the defendant actually innocent of those counts,
and holding a defendant to his admissions of guilt on other
properly charged and correctly understood counts for which
there is no evidence of actual innocence.

       Second, the dissent relies upon its understanding that all
pleas are packages, and thus an infirmity as to part of the plea
causes the entire plea to become voidable. This understanding is
erroneous both as to the contours of the sentencing package
doctrine as well as to the circumstances of McKeever’s plea
agreement. The sentencing package doctrine generally applies
to sentences with interdependent, consecutive counts, and not to

                                 10
concurrent sentences. See United States v. Murray, 144 F.3d
270, 273-74 n.4 (3d Cir. 1998); United States v. Davis, 112 F.3d
118, 123 (3d Cir. 1997). Here, the precise agreement reached
also demonstrates that the two PACOA counts on which
McKeever was sentenced were independent of the other counts.
The Court of Common Pleas sentenced McKeever separately on
all counts. (55-76). The two PACOA counts were concurrent
with one of the six drug delivery counts, which were consecutive
with each other. The PACOA counts and the drug delivery
counts clearly were not interdependent.

        Even assuming, however, that Mckeever’s sentence was a
package, it is within the bounds of due process to resentence a
defendant on remaining counts after some, but not all counts, are
vacated. The decision in United States v. Barron, 172 F.3d
1153, 1158 (9th Cir. 1999)(en banc), is squarely on point.
Barron pled guilty to three counts: Count I, felon in possession
of a firearm, carrying a maximum of ten years, or a minimum of
fifteen years’ imprisonment if defendant had previously engaged
in certain criminal conduct; Count II, possession of twenty-one
ounces of cocaine with intent to distribute, with a sentence range
of ten years to life imprisonment; and Count III, possession of a
firearm in relation to drug trafficking pursuant to 18 U.S.C. §
924(c)(1), with a sentence of five years consecutive to any term
of imprisonment imposed. Three years after he was sentenced,
the Supreme Court decided Bailey v. United States, 516 U.S. 137
(1995), which held that use of a gun under § 924(c)(1) requires
“active employment” of the gun in relation to the drug offense.
Because Barron admitted to concealing a gun, but not to using
the gun, the parties agreed that the facts did not justify his
conviction on Count III.

        Barron filed a § 2255 petition seeking habeas relief. The
district court held that “Barron could have the plea agreement set
aside on the ground that it was not knowing and voluntary
because of ignorance of the law declared by Bailey.” Barron,
172 F.3d at 1156. A three-judge panel of the Ninth Circuit first
affirmed,8 but was then reversed in an en banc decision which
held that “the guilty plea to criminal acts can remain in force

       8
           United States v. Barron, 127 F.3d 890 (9th Cir. 1997).

                                 11
even as the sentence imposed upon an innocent act is set aside. .
. . [There is no] reason for reducing      § 2255 remedies to two
(discharge or new trial) when a plea agreement is in force. . . .
[T]he district court can distinguish the convictions that are still
valid, reinstate the judgment, and resentence.” Id. at 1158. It
further held that “a collateral challenge to the legality of a
particular count of conviction does not constitute a breach of or
withdrawal from a plea agreement, and . . . the remainder of the
plea agreement remains in effect.” Id. at 1160. Similarly, in
United States v. Watkins, 147 F.3d 1294, 1298 (11th Cir. 1998),
the court found no due process violation when defendant
collaterally attacked one count of a package sentence imposed
pursuant to a plea agreement, and the district court vacated that
count and resentenced defendant on the remaining counts.

       The dissent’s reliance upon United States v. Lewis, 138
F.3d 840 (10th Cir. 1998), is misplaced. The plea in Lewis only
covered one count. Thus, the issue of the constitutionality of
vacating one count in a multi-count plea agreement simply was
not before the court. Moreover, the Lewis court relied upon
language in the Barron panel opinion, which had not yet been
reversed en banc. Lewis, 138 F.3d at 841-43.

        Contrary to McKeever’s contention, rescission of the
entire plea agreement was not the only appropriate remedy. This
Court, in Spinetti v. Serv. Corp. Int'l, 324 F.3d 212, 219 (3d Cir.
2003), cited to the Restatement (First) of Contracts § 603 (1932)
for the proposition that a “bargain that is illegal only because of
a promise or a provision for a condition, disregard of which will
not defeat the primary purpose of the bargain, can be enforced
with the omission of the illegal portion by a party to the bargain
who is not guilty of serious moral turpitude unless this result is
prohibited by statute.” The Restatement (Second) of Contracts §
184 (1981), similarly states, “[i]f less than all of an agreement is
unenforceable under the rule stated in § 178, a court may
nevertheless enforce the rest of the agreement in favor of a party
who did not engage in serious misconduct if the performance as
to which the agreement is unenforceable is not an essential part
of the agreed exchange.” Because we hold that the PACOA
charges were not an essential part of the agreed exchange,
rescission of the plea is not necessary and the Commonwealth

                                12
did not err in vacating the two PACOA counts and resentencing
McKeever based upon the remainder of the plea agreement.9

        Furthermore, the mistake here - a later change in law that
was beneficial to the Defendant - is not of the type that is per se
sufficient for avoidance of the plea agreement, as the allocation
of risk of future changes is part of the bargaining process. See
Bownes, 405 F.3d at 636 (“In a contract (and equally in a plea
agreement) one binds oneself to do something that someone else
wants, in exchange for some benefit to oneself. By binding
oneself one assumes the risk of future changes in circumstances
in light of which one’s bargain may prove to have been a bad
one. That is the risk inherent in all contracts; they limit the
parties’ ability to take advantage of what may happen over the
period in which the contract is in effect.”). Accordingly, in the
circumstances of this case, vacating McKeever’s plea agreement
was not the only legally permissible remedy.10

                                IV.

     We hold that the District Court did not err in granting
McKeever’s writ of habeas corpus and leaving the remedy to the
Commonwealth.11 The Order of the District Court will be


       9
         We also note that many of the cases the dissent relies upon
involve habeas petitions that arise out of federal prosecutions
pursuant to 28 U.S.C. § 2255. Such petitions do not implicate the
federalism and comity issues of habeas petitions under 28 U.S.C.
§ 2254 that, in this case, support a remand to the state judge for
determination of remedy.
       10
           There may be a case in which events subsequent to a
multi-count plea render the defendant innocent of a count which is
so central to the bargain between the parties that vacating the plea
is the only constitutionally permitted remedy. This is not such a
case.
       11
              We are not determining the validity of the
Commonwealth’s resentencing on remand. Rather, this ruling is
limited to the validity of the District Court’s order remanding the
case to state court for a determination of the appropriate remedy.

                                13
affirmed.




MCKEEVER v. WARDEN SCI GRATERFORD, et al.

No. 05-2492


ROTH, Circuit Judge, Dissenting:

       I respectfully dissent. I believe that the plea agreement here,
negotiated and entered into on the basis of a shared
misapprehension as to the reach of one of the statutes under which
the defendant is charged, is voidable as based on a material mutual
mistake.

I.     Facts

       Because one aspect of the procedural history in this case is
important to this dissent and is not sufficiently set out in the
majority’s recitation of the facts, I briefly summarize it here. The
District Court found that McKeever’s conviction of the two
PACOA counts violated McKeever’s due process rights because
PACOA, as later interpreted by the Supreme Court of
Pennsylvania, did not reach wholly illegal organizations such as the
one in which McKeever participated. The District Court then
issued a writ of habeas corpus but stayed the writ for 180 days “to
permit the Commonwealth to vacate the Petitioner’s convictions
related to the Pennsylvania Corrupt Organizations Statute and
resentence him accordingly.” Order Adopting the Magistrate
Judge’s Report and Recommendation, McKeever v. Warden SCI
Graterford, No. 04-3567 (E.D. Pa. Mar. 23, 2005).12


       12
         This order identified as the remedy for the constitutional
violation the vacatur of the two PACOA convictions and
resentencing. This language is inconsistent with portions of the
District Court’s opinion, which suggest that the District Court
would leave the choice of remedy – either vacatur of the PACOA

                                 14
       Subsequently, the state courts took several actions on
McKeever’s case. First, on April 26, 2005, the Erie County Court
of Common Pleas denied as untimely McKeever’s motion to
withdraw his guilty plea. The court then vacated the PACOA
convictions and resentenced McKeever to the same aggregate
sentence as before. Com. v. McKeever, No. 2934 of 1994, slip.op.
at 8 (Erie Ct. of Common Pleas June 29, 2005). In its later-filed
opinion, the court reasoned that the motion was untimely; the plea
was knowing, intelligent, and voluntary; and “if the federal court
had intended for this [Court of Common Pleas] to permit Defendant
to withdraw his guilty plea, that court would have so indicated in
its Order.” Id. at 3, 18. In January, 2006, the Superior Court
affirmed, holding that the motion to withdraw the guilty plea
“relate[d], directly and exclusively, to Appellant’s PACOA
convictions” and was therefore moot.13 Com. v. McKeever, 895
A.2d 692 (Table), No. 880 WDA 2005, slip op. at 3 (Pa. Super. Ct.
Jan. 27, 2006).

II.    The Sufficiency of the Remedy

       The majority concluded that the District Court “was correct
in granting McKeever’s writ of habeas corpus but leaving the
precise remedy in the hands of the Commonwealth.” I do not
agree that offering the state court the choice of fashioning a remedy


convictions or recission of the plea – to the Pennsylvania state
courts since they were “in a better position to decide whether a
‘mutual mistake’ denied Petitioner of [sic] the ‘benefit’ of his
‘bargain’ with the prosecution, and the legal significance, if any, of
such a denial.” McKeever v. Graterford, No. 04-3567, 2005 WL
696893, at *4 (E.D. Pa. Mar. 23, 2005). We note that in its
discussion about permitting the state court to choose the applicable
remedy, the District Court cited cases where the basis for habeas
relief was breach of the plea agreement, not a plea to activities
which did not constitute a criminal offense. In such a situation,
there may be more than one constitutionally sufficient remedy. See
Santobello v. New York, 404 U.S. 257, 263 (1971); Dunn v.
Colleran, 247 F.3d 450 (3d Cir. 2001).
       13
          McKeever had moved for other forms of relief; none of
the other motions was granted or is relevant here.

                                 15
is the proper solution because I find only one remedy – that of
release unless McKeever is allowed to withdraw the entire plea
agreement – is constitutionally sufficient.

       Moreover, in its Order, the District Court – as the Court of
Common Pleas observed – did not present the state courts with a
choice of several sufficient constitutional remedies that would
avoid McKeever’s release. Rather, the Order suspended the
granting of the writ on the condition that the state courts implement
one specific remedy – vacatur of the PACOA counts. Contrary to
the majority’s view, I believe that a district court has the authority
to issue a conditional writ as long as the condition offered
embodies a remedy sufficient to cure the constitutional error.
Only where more than one remedy is sufficient to cure that error,
should the state court be permitted to choose the remedy.

        The precedent invoked by the majority is not to the contrary.
 The majority cites Barry v. Brower for the proposition that “[a]
habeas court does not have the power to directly intervene in the
process of the tribunal which has incorrectly subjected the
petitioner to the custody of the respondent official.” 864 F.3d 294,
301 (3d Cir. 1988) (internal citation omitted). But Barry
unremarkably stands for the proposition that a federal court’s
power is limited to ordering a prisoner released unless the state
court takes certain actions and does not extend to directing the state
to do anything. Barry, however, does not hold that a federal court
is without power to say which actions will be sufficient to correct
a constitutional infirmity and avoid the prisoner’s release. Indeed,
in Barry we held that the District Court did not have the power to
direct the state to reinstate a prisoner’s appeal but should instead
have issued a conditional writ ordering him released unless the
state court, within a certain time period, “enter[ed] an order
reinstating [the prisoner’s] appeal and permitting the public
defender to represent him in that appeal.” Id. at 301. Similarly, in
Henderson v. Frank, 155 F.3d 159 (3d Cir. 1998), we specified that
“conditional writs must be tailored to ensure that all constitutional
defects will be cured by the satisfaction of that condition.” Id. at
168.14

       14
        As mentioned above, where more than one remedy would
be adequate to correct the conditional defect, it is appropriate for

                                 16
        Thus, the District Court was entirely within its authority in
issuing a conditional writ of habeas corpus specifying that
McKeever should be released unless the state courts adopted a
specific remedy to correct the constitutional infirmity. Its error was
not in naming a remedy, but in naming the wrong one because the
remedy it identified was not sufficient. The court should have
ordered McKeever released unless he was allowed to rescind the
entire plea agreement.

III.   Effect of Mutual Mistake on a Guilty Plea

        This is not the first time that federal courts have been
confronted with the question presented in this case – the effect on
a guilty plea of a shared misapprehension as to the reach of a
criminal statute. Rather, both the Supreme Court and several sister
circuits faced this issue following the Supreme Court’s decision in
Bailey v. United States, 516 U.S. 137 (1995), which significantly
narrowed the reach of the provision prohibiting the use of firearms
in relation to the commission of a drug crime, 18 U.S.C. § 924(c).
These decisions put forward two principles: first, where the parties
involved are mistaken in the shared belief that a certain conduct is
reached by a statute, the guilty plea to the counts arising under the
specific statute is constitutionally invalid because the plea could
not have been knowing or intelligent; and second, because a plea
agreement comes about as a “package,” a misapprehension shared
by the defendant, his counsel, the prosecutor, and the trial court as
to the reach of the statute constitutes a mutual mistake with
material effects on the bargain, so that the entire plea agreement


the federal court to offer the state a choice between releasing the
petitioner and adopting one of the several remedies identified as
sufficient. See Dunn, 247 F.3d 450 (where a plea agreement was
breached by the prosecution, breach could be remedied either by
ordering specific performance of the agreement or by voiding it);
Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir. 1996) (remanding
with directions that petitioners be released unless the
Commonwealth of Pennsylvania adopted one of two remedies
either of which could cure the constitutional infirmity). However,
as discussed below, I conclude that only one remedy is appropriate
here.

                                 17
becomes voidable at the petitioner’s request and the parties are
returned to their pre-plea positions.15

        In Bousley v. United States, 523 U.S. 614 (1998), the
Supreme Court held that, if a plea is to counts arising under a
statute later found not to reach the defendant’s conduct, that plea
is constitutionally invalid. In Bousley, the petitioner challenged his
plea of guilty to “using” a firearm in violation of 18 U.S.C. §
924(c)(1). The petitioner argued that because the District Court
failed to inform him at the time of his plea that the statute required
“active employment of the firearm” (as the Supreme Court later
clarified in Bailey), his plea was not knowing or intelligent. Id. at
616 (internal quotation marks and citation omitted). The Supreme
Court did not reach the merits of Bousley’s claim (rather, it
remanded for clarification of whether Bousley could factually
make out a claim of “actual innocence” to excuse procedural
default), but it stated in strongly worded dictum that where a record
“reveals that neither [the petitioner], nor his counsel, nor the court
correctly understood the essential elements of the crime with which
he was charged[, the] petitioner’s plea [is] constitutionally invalid.”
Id. at 618-19.


       15
           The majority takes the somewhat puzzling position that
nobody was, in fact, mistaken at McKeever’s plea because at that
time “PACOA did . . . cover McKeever’s conduct. . . . The law did
not change until after McKeever pled and was sentenced.” But the
Pennsylvania Supreme Court’s announcement of the correct
interpretation of the PACOA statute is not a “change” in the law–it
is simply what the law always was, except that it had been
misunderstood. See Kendrick v. District Attorney, 916 A.2d 529,
538 (Pa. 2007) (“this Court's interpretation of the term ‘enterprise’
[as used in the PACOA] was not a ‘new rule,’ but must be deemed
to have merely explicated the meaning and scope of the term from
the Pa.C.O.A.'s original enactment in 1973”); see also Rivers v.
Roadway Express, 511 U.S. 298, 312-12 (1994) (“judicial
construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving
rise to that construction.”) The fact that the interpretation pursuant
to which McKeever entered his plea was generally shared in the
legal community does not make it any less of a mistake.

                                  18
        Although the petitioner in Bousley had pled guilty to
multiple counts (as McKeever did in this case), he, unlike
McKeever, did not challenge the entire plea on the basis of the
shared misapprehension; rather he attacked only the validity of the
specific plea to the Section 924(c) violation. Thus the issue of the
potential invalidity of the entire plea agreement was not brought to
the attention of the Court. Two sister circuits, however, have been
confronted with this question and have held that, when the plea as
to one violation is constitutionally invalid because the parties did
not understand at the time that the statute did not reach the
defendant’s conduct, the entire plea agreement must be voided;
courts should not simply “sever” the invalid pleas and treat the
remainder of the plea agreement as valid.

        In United States v. Lewis, 138 F.3d 840 (10th Cir. 1998), the
petitioner had been charged with eleven counts of offenses
involving drugs and firearms but, under a plea agreement, had pled
guilty to just one of the counts, use of a firearm in relation to a drug
trafficking offense under 18 U.S.C. §924(c). After the Supreme
Court decided Bailey, Lewis attacked his conviction and sentence,
arguing that he was unconstitutionally imprisoned because the
statute under which he was convicted and sentenced did not reach
his conduct. Lewis, however, did not request that the entire plea be
voided (as that would leave him potentially vulnerable to
prosecution on the other ten counts); rather, he requested
immediate release, since he was imprisoned on the Section 924(c)
count only. The Tenth Circuit held that, where a plea agreement is
based on a mutual mistake as to the elements of a charge, the only
appropriate remedy is to void the entire plea agreement, because a
plea agreement is a “package” deal that a district court has the
authority to “vacate . . . when a conviction that is part of the plea
package is vacated.” Id. at 842. Because the petitioner was “the
party affected by the parties’ mutual mistake[, h]is plea agreement
with the government [was] voidable, if he so [chose].” Id. at 841.
The court expressly declined to hold that the plea agreement was
invalid only as to one part (Lewis’s guilty plea to the 924(c) count)
and not another (the dismissal of the other counts); if Lewis chose
to pursue his habeas petition, the entire deal would be off and he




                                  19
could face prosecution on all the originally dismissed counts.16

      In support of its reasoning, the Lewis court quoted
approvingly the Ninth Circuit’s opinion in United States v. Barron,
127 F.3d 890 (9th Cir. 1997):

       Given the realities of plea bargaining, it makes good
       sense to apply the sentence package concept when a
       petitioner challenges one of multiple convictions
       obtained under a plea agreement . . .. Because the
       district court cannot possibly know what convictions
       or sentences [a defendant] would have received had
       he not pleaded guilty to the section 924(c) count . .
       ., an appropriate remedy is to put [the defendant] in
       the position he was in before he entered into the plea
       agreement or before the district court accepted the
       plea based on conduct which did not constitute the
       crime charged.

Lewis, 138 F.3d 843, quoting Barron, 127 F.3d at 895.17 See also

       16
           The majority argues that Lewis is irrelevant to our
purposes because the plea covered only one count and therefore
“the constitutionality of vacating one count in a multi-plea
agreement was simply not before the court.” But the point in Lewis
is that when there is a plea bargain, the court must look to the entire
agreement and not simply to the end result. Thus the Lewis court
recognized that the defendant’s plea to one count was inextricably
tied to the dismissal of the other counts, because that dismissal was
implicitly part of the bargain.
       17
          Barron held under similar circumstances that, although
the habeas petitioner had simply requested resentencing once the
prosecution had conceded that his conviction under Section 924(c)
was invalid, the petition must be understood as an attack on the
plea itself and the correct remedy was to set aside the entire plea.
This decision was later vacated, however, and on rehearing en banc
the Ninth Circuit held that since the petitioner had challenged his
incarceration on one ground out of several allowed by Section
2255, the District Court was bound by the statutory language
allowing four possible remedies (“discharge the prisoner or

                                  20
United States v. Sandoval-Lopez, 122 F.3d 797, 802 (9th Cir. 1997)


resentence him or grant a new trial or correct the sentence as may
appear appropriate”); it could not “eliminat[e] the two possibilities
of resentencing or of correcting the sentence.” United States v.
Barron, 172 F.3d 1153, 1157 (9th Cir. 1999) (en banc). Thus the
district court had erred in reasoning that “the only way Barron’s
motion could be granted was by construing it as an attack on the
plea agreement” and granting the motion on condition that Barron
agree to withdraw the plea. Id. The majority argues that the
Barron en banc decision is “squarely on point” and invalidates the
panel’s reasoning (and Lewis, which relied on it). It is true that the
Ninth Circuit, in its en banc decision, expressed doubts about the
applicability of contract law to plea agreements, but these doubts
are not the basis of its decision. Rather, the Ninth Circuit was
primarily concerned with the propriety of the District Court’s sua
sponte modification of the petitioner’s request for vacatur of a
single conviction into a motion attacking the plea agreement. See
Barron, 172 F.3d at 1158 (“It is only the analysis of the district
court that turned this simple motion into something more, a
challenge to the plea agreement. The district court had no authority
to invent a new basis for Barron’s motion and erred in doing so.”)
Indeed, the Barron en banc opinion explicitly recognized that “the
argument that plea bargains must be treated as a package logically
applies only in cases in which a petitioner challenges the entire
plea as unknowing and involuntary,” which is the case for
McKeever but not for Barron. Id. at 1160. In doing so, Barron
cited United States v. Sandoval-Lopez, 122 F.3d 797 (3d Cir.
1997), which again makes the same point: “Defendants sometimes
bring collateral attacks on the plea agreements qua plea
agreements, but claiming that their pleas were not ‘knowing’ or
‘voluntary,’ or were otherwise defective. Such attacks are directed
at the entire agreement and, if successful, may render the entire
agreement void or voidable.” Id. at 802 (emphasis added). The
reasoning in the Barron en banc decision thus does not directly
affect the conclusion that, if a prisoner attacks the validity of a plea
on the grounds of mutual mistake, the proper remedy is to void the
plea; it merely stands for the proposition that under Section 2255,
a prisoner may attack his imprisonment on a variety of grounds and
the district court has discretion to fashion a remedy according to
the statute, but not to transform the petition into something it is not.

                                  21
(noting in dictum that where a defendant attacks a plea agreement,
the attack is “directed at the entire agreement, and, if successful,
may render the entire agreement void or voidable,” so that the
“proper remedy” in such a case might be “to vacate or allow
withdrawal of the guilty pleas and reinstate” the charges dismissed
under the plea agreement); United States v. Bunner, 134 F.3d 1000,
1005 (10th Cir. 1998) (where defendant, relying on Bailey, had
successfully attacked his conviction under Section 924(c), the
underlying purpose of the plea agreement was frustrated, and the
government’s plea agreement obligations became dischargeable;
thus, at the government’s election, the parties could be returned to
position they occupied before Bunner entered his guilty plea).

        The Seventh Circuit Court of Appeals recently reached the
same conclusion in United States v. Bradley, 381 F.3d 641 (7th Cir.
2004). Bradley also involved a mutual mistake as to the reach of
18 U.S.C. § 924(c), although in this case it was independent of the
Supreme Court’s holding in Bailey. On direct appeal, the court held
that Bradley should be allowed to withdraw his entire plea, not just
the plea to the Section 924(c) count. It reasoned, first, that the
specific plea to Section 924(c) was not knowing and voluntary, and
second, that because there was no “meeting of the minds on all
[the] essential terms” of the plea agreement, the entire plea
agreement, and not just the plea as to Section 924(c), was “tainted.”
Id. at 647-48.

        The Supreme Court’s decision in Brady v. United States,
397 U.S. 742 (1970), cited by the majority for the proposition that
a plea agreement that fails to anticipate a change in the law is not
per se unknowing and involuntary, is distinguishable from Bousley,
Lewis, and Bradley. Brady had pled guilty to kidnaping (18 U.S.C.
§ 1201(a)) and had received a sentence of 50 years’ imprisonment,
later reduced to 30. Nine years later, the Supreme Court held in
United States v. Jackson, 390 U.S. 570 (1968), that the death
penalty provision in Section 1201(a) – mandating the death penalty
for defendants convicted under this statute, if the victim was not
liberated unharmed and if the jury recommended it, but providing
that the judge could not impose the death sentence if the defendant
pled guilty – needlessly chilled the exercise of the right not to plead
guilty and to go to trial, because the defendant could not be
sentenced to death if he pled guilty, but faced a significant

                                  22
likelihood of capital punishment if he went to trial. Relying on
Jackson, Brady then challenged his guilty plea to kidnaping,
claiming among other things that his plea was not intelligent
because his counsel had wrongly advised him that the jury had the
power to condemn him to death (the power later found
unconstitutional in Jackson).

       The Court rejected Brady’s argument, holding there was

       no requirement in the Constitution that a defendant
       must be permitted to disown his solemn admissions
       in open court that he committed the act with which
       he is charged simply because it later develops that
       the State would have had a weaker case than the
       defendant had thought or that the maximum penalty
       then assumed applicable has been held inapplicable
       in subsequent judicial decisions.

Brady, 397 U.S. 742, 757 (emphasis added). This phrasing
(substantially repeated three times within two paragraphs of the
opinion) clarifies the import of the more general proposition, also
used on the same page, that “absent misrepresentation or other
impermissible conduct by state agents . . . a voluntary plea of guilty
intelligently made in the light of the then applicable law does not
become vulnerable because later judicial decisions indicate that the
plea rested on a faulty premise.” Id. The Brady Court was not
faced with a situation where the statute simply did not reach the
defendant’s admitted conduct but the parties did not know this;
Brady’s lack of knowledge regarded the possible sentence, not the
fact that he was actually innocent of the charges against him. If the
Court had been faced with a situation where defendants would
“falsely condemn themselves” because of an offer of leniency, the
Court admitted, a different decision might be required. Id. at 758.
Unlike Brady, McKeever did, in fact, “falsely condemn himself”
– not because of an offer of leniency, but because nobody knew
any better. McKeever’s plea was unknowing in a far more basic
sense than Brady’s could have been.18

       18
          In the wake of Brady, the Supreme Court held a variety of
other misapprehensions insufficiently important to invalidate a
guilty plea, see United States v. Ruiz, 536 U.S. 622, 630-31 (2002),

                                 23
         Our sister circuits’ decisions in Lewis and Bradley,
concluding that a plea agreement such as the one here is voidable
in its entirety, are based on the widely agreed-upon notion that plea
agreements must be construed according to the general principles
of contract law. See United States v. Gebbie, 294 F.3d 540, 551
(3d Cir. 2002) (rules of contract interpretation are applied to plea
agreements); Dunn, 247 F.3d at 462 (if the government breaches a
plea agreement, the remedy is either specific performance or
rescission of the agreement and withdrawal of the entire plea);
Houmis v. United States, 558 F.2d 182, 183 (3d Cir. 1977) (plea
was invalid where the record revealed substantial confusion as to
whether habeas petitioner “had understood the agreement, and thus
[left] doubt as to whether any ‘meeting of the minds’ ever resulted
from plea negotiations”). Under general principles of contract law,
a contract based on a material mistake shared by the parties to the
contract is voidable. See Restatement (Second) of Contracts § 152
(“[w]here a mistake of both parties at the time a contract was made
as to a basic assumption on which the contract was made has a
material effect on the agreed exchange of performances, the
contract is voidable by the adversely affected party unless he bears
the risk of the mistake”).

       Of course, not all mistakes can lead to the voiding of a
contract. The party wishing to void the contract “must show that
the resulting imbalance in the agreed exchange is so severe that he
can not fairly be required to carry it out. Ordinarily he will be able
to do this by showing that the exchange is not only less desirable


but none of these cases involved something as central as the
element of the crime. United States v. Bownes, 405 F.3d 634 (7th
Cir. 2005), cited by the majority, is also not controlling, since it
merely held that a broadly worded waiver of appeal in the
defendant’s plea agreement was effective even if the parties to the
agreement had failed to anticipate the Supreme Court’s decision in
Booker, which might have provided the defendant with grounds for
appeal. Id. at 636. The court in Bownes explicitly referred to the
“absence of an explicit escape clause” as indicative of the parties’
intention not to allow for any flexibility in the waiver. A
misapprehension about the defendant’s right to appeal his sentence
is not of the same order as a misapprehension about whether he can
be guilty of a charge.

                                 24
to him but is also more advantageous to the other party.”
Restatement (Second) of Contracts, § 152 cmt. c. The majority
holds that the mutual misapprehension as to the reach of the
PACOA was not a mistake of the kind that would require rescission
of the plea agreement because, first, it is a mistake of law rather
than fact, and second, it is not material because “the heart of the
plea agreement was not the PACOA charges, but rather the drug
trafficking charges” and the primary purpose of the plea agreement
could be preserved by reforming the contract to conform to the
actual state of the law (i.e., by severing the pleas to the PACOA
counts). I disagree.

        First, whether the misapprehension as to McKeever’s
innocence is characterized as a mistake of fact or law does not
change its impact on the deal McKeever struck with the
Commonwealth. As several commentators have noted, modern
contract law has abandoned the strict view that “ignorance of the
law is no excuse” and therefore mutual mistakes of law do not
affect the validity of contracts even in situations that would give
rise to inequity.19 See Restatement (Second) of Contracts § 151
(defining “mistake” as “a belief that is not in accord with the
facts”) and cmt. b (“[t]he rules stated in this Chapter do not draw
the distinction that is sometimes made between ‘fact’ and ‘law.’
They treat the law in existence at the time of the making of the
contract as part of the total state of facts at that time”); 27 Richard
A. Lord, Williston on Contracts § 70:125 (4th ed. 1990) (noting
that in modern contract law, “[c]ourts generally disallow any
distinction between mistakes of fact and law, treating both alike for
purposes of equitable relief. . . .. To justify rescission, a mistake of
law must have related to a question, the answer to which was
assumed as part of the fundamental basis of the transaction.”); 7-28
Joseph Perillo, Corbin on Contracts § 28.49 (revised ed. 2002)
(“[t]oday, the rule denying relief for mistake of law has little
vitality. It has been eroded by so many qualifications and
exceptions, varying from jurisdiction to jurisdiction. It is common
to find cases where the issue is not even raised.”); E. Allan
Farnsworth, Contracts § 9.2 (“the modern view is that the existing

       19
         It goes without saying that it would not be practical to
insist on “knowledge” of the law in a case like this, since the
proper interpretation of the statute had not yet been declared.

                                  25
law is part of the state of the facts at the time of agreement.
Therefore, most courts will grant relief for such a mistake, as they
would for any other mistake of fact.”).

        Moreover, whatever value this distinction may have in an
ordinary commercial context, it is important to remember that plea
agreements are “constitutional contracts” and unlike contracts in
other spheres must “be construed in light of the rights and
obligations created by the Constitution.” Ricketts v. Adamson, 483
U.S. 1, 16 (1987). A mistake of law in this context has a
constitutional dimension and cannot be treated as tainting the
validity of the bargain made by the parties any less than a mistake
of fact.20

         Second, to say that the plea to the two PACOA counts did
not affect the sentence finally imposed and that therefore the
PACOA counts could not constitute the heart of the plea
agreement, is to beg the question. McKeever obtained from the
prosecution a treatment for the two PACOA counts that amounted
to no additional jail time in exchange for his pleas to the drug
trafficking counts. That the drug trafficking counts constituted the
heart of the sentence McKeever received does not necessarily mean
that they also constituted the heart of the bargain. The mutual
mistake as to the reach of the PACOA caused McKeever to accept
something valueless (the merger and concurrent sentence on the
PACOA counts) in partial exchange for something valuable (his
agreement not to contest the other counts). The two PACOA
counts represented a potential additional prison term of fourteen
years; the mistake as to whether his conduct was criminal under the
PACOA could not have been immaterial.21

       20
         In deciding Lewis and Bradley, our sister circuits declined
to define the mistake as one of law or of fact, but it is clear that
they understood it as one of law or, at most, a mixed one. See
Bradley, 381 F.3d at 647 (the mistake was a “misunderstanding of
the nature of the charge”); Lewis, 138 F.3d at 841 (the parties had
a “mutually mistaken belief . . . that the evidence supported the
section 924(c) count”).
       21
         The majority discusses the “sentencing package” doctrine
to reach the conclusion that because McKeever was sentenced

                                26
        Where a mistake regards a basic assumption on which the
bargain is based, rescission of the contract is the preferred remedy;
reformation is appropriate only when the mistake “is one as to
expression.” United States v. Williams, 198 F.3d 988, 994 (7th Cir.
1999) (quoting Restatement (Second) of Contracts § 155 cmt. a).22
See also United States v. Sandles, 80 F.3d 1145, 1148 (7th Cir.
1996) (“[w]here there is a mutual misunderstanding as to the
material terms of a [plea agreement], the appropriate remedy is
rescission, not unilateral modification.”); 27 Williston on Contracts
§ 70.35 (4th ed.) (“reformation must yield to rescission where the
error is in the substance of the bargain, not in its expression”).
Spinetti v. Serv. Corp. Int’l, 324 F.3d 212, 219 (3d Cir. 2003), cited
by the majority, is not controlling because, first, it involved the
reformation of a contract containing a provision that was contrary
to public policy, not a contract grounded on a mistake of law; and
second, the excised provision regarded a matter peripheral to the
essence of the bargain (the allocation of attorney fees in a binding
arbitration agreement). Where the parties have reached an
agreement only part of which cannot be enforced, despite the


separately on the drug counts and the PACOA counts there is no
need to resentence him upon a finding that he entered a plea on the
basis of a mistake as to whether he could be guilty of the PACOA
counts. This argument, however, misapprehends my position,
which is not that the sentence was a package, but that the plea
agreement was. A contract is no less a unified document because
a party is charged separately for each item bought.
       22
          In Williams, the defendant and the prosecutor both
erroneously believed he faced a maximum sentence of ten years,
rather than the fifteen he was, in fact, exposed to. When this was
discovered, the District Court offered Williams the opportunity to
withdraw his guilty pleas, but Williams felt this would not benefit
him in any way; since he had already cooperated with the
government, he would have no bargaining power to negotiate a
new deal. On appeal, Williams argued the court should reform the
plea agreement to conform to the parties’ intent by forcing the
government to drop two counts. The Court of Appeals affirmed the
District Court’s decision to offer Williams the opportunity to
rescind the contract in its entirety, holding this was the only
possible remedy.

                                 27
parties’ intent, because of the external constraints of public policy,
it makes sense to allow the core of the contract to survive and
invalidate only the sections that offend public policy. But where,
as here, the parties are mistaken as to the nature of the bargain, the
agreement should be set aside and the parties given the opportunity
to renegotiate on the basis of the true value of the bargained-for
promises – particularly where mistake as to the nature of the
bargain is of constitutional significance; i.e., if the activity covered
by the plea is not a criminal offense, can the plea be a knowing and
intelligent one.

IV.    Prejudice to the Commonwealth

        I am mindful of the Commonwealth’s argument that, if the
plea were voided and McKeever chose to go to trial, the
prosecution, through no fault of its own, would be significantly
prejudiced by having to locate witnesses to drug transactions that
were completed thirteen or fourteen years ago, even though
McKeever has never contested his responsibility for them.
However, even though a party’s delay in declaring his intention to
rescind a contract may preclude rescission in an ordinary contract
case, the delay has less significance when the reason for rescission
has constitutional implications.

        Admittedly, McKeever did not act swiftly to put the
Commonwealth on notice of his intention to rescind the plea when
he learned of the mutual mistake. The initial decision of the
Pennsylvania Supreme Court, holding the PACOA inapplicable to
wholly illegitimate enterprises, was issued in 1996. See
Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996). Even assuming
that McKeever did not begin collateral review proceedings at that
time because the Pennsylvania legislature promptly amended the
statute so that it would clearly apply to illegitimate enterprises, he
must have known at the latest by 1999 (when the Pennsylvania
Supreme Court issued Commonwealth v. Shaffer, 734 A.2d 840
(Pa. 1999)) that the amended statute did not apply retroactively to
him.23 Yet, McKeever waited almost four years–until June 2003–to

       23
          McKeever concedes as much when he asserts that he
“relied on Shaffer” when he sought collateral review.
       It could be argued that McKeever did not act dilatorily, but

                                  28
seek collateral review of his conviction.

        In general, a delay of this kind would weaken a party’s right
to rescission of the contract as an equitable remedy. See Grimes v.
Sanders, 93 U.S. 55, 62 (1876) (holding, in the context of unilateral
mistake, that the party desiring rescission “must, upon the
discovery of the facts, at once announce his purpose, and adhere to
it”). This conclusion would be strengthened by the prejudice
inflicted on the Commonwealth by each intervening year. See id.
at 62 (“A court of equity is always reluctant to rescind, unless the
parties can be put back in statu quo. If this cannot be done, it will
give such relief only where the clearest and strongest equity
imperatively demands it”).

         In the context of constitutional violations, however, both the
Supreme Court and this Court have declined the invitation to
consider the prejudice to the prosecution of having to try–or retry–a
defendant on the basis of stale evidence. In Vasquez v. Hillery, 474
U.S. 254 (1986), the Supreme Court upheld the grant of a new trial
to a black petitioner who had been indicted by a grand jury from
which blacks were systematically excluded. In dissent, Justice
Powell argued relief was inappropriate where the violation
occurred in the distant past (twenty-six years, in that case) and
where the State could show it would be substantially prejudiced in
its ability to retry the defendant. Id. at 279-282 (Powell, J.,
dissenting). The majority, however, rejected the dissent’s “theory
. . . , which would condition the grant of relief upon the passage of
time between a conviction and the filing of a petition for habeas
corpus, depending upon the ability of a State to obtain a second




rather prematurely, since the Pennsylvania Supreme Court has only
recently held that Besch applies retroactively to cases on collateral
review. See Kendrick v. District Attorney, 916 A.2d 529 (Pa. Feb.
20, 2007). Unlike McKeever, however, Kendrick sought collateral
review of his conviction on Besch grounds by amending his PCRA
petition immediately after Besch was decided, and timely pursued
federal remedies after exhausting the state PCRA process. Id. at
*1-2.

                                  29
conviction.” Id. at 264.24 See also United States v. Nahodil, 36
F.3d 323, 327-28, 330 (3d Cir. 1994) (noting, in Section 2255
context, that although “prejudice to the government’s ability to
retry the case” is a factor to be considered in ruling on a motion to
withdraw a plea under Fed. R. Crim. P. 11(d)(2)(B), “prejudice to
the government’s ability to bring a case to trial is not dispositive of
a motion to withdraw the guilty plea if the original acceptance of
the plea was improper or improvident”).25

       Therefore, I conclude that the District Court should have
granted the writ and ordered McKeever released unless his entire
plea was rescinded. I respectfully dissent from the majority’s
holding that vacating the PACOA convictions and resentencing
was a sufficient remedy.




       24
          The majority in Vasquez justified its position, among
other things, on the absence of a statute of limitations for Section
2254 petitions and on Congress’ unwillingness to amend the
wording of 28 U.S.C. § 2254 Rule 9(a) (repealed 2004), which
provided a defense to the State where it was “prejudiced in its
ability to respond to the petition by delay in its filing,” but not
where the prejudice concerned its ability to bring the petitioner to
justice. These considerations have less weight since the adoption
of the AEDPA statute of limitations and the repeal of Rule 9(a).
However, to allow McKeever to escape the AEDPA statute of
limitations on the grounds of “actual innocence” and then deny him
the appropriate relief because of his delay in filing his petition
would amount to reviving a stricter version of Rule 9(a) by judicial
action. I do not believe this would be appropriate.
       25
          We are not faced here with a situation where the plea
agreement contained an explicit waiver on the part of the defendant
of his right to challenge the entire plea if one or more of the
statutes under which he was charged are subsequently interpreted
not to reach his conduct. I therefore express no view as to whether
this might be an effective way to ensure that prosecutors acting in
good faith avoid the problems that arose here and that defendants
receive the benefits of their bargain.

                                  30
