2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-1-2010 

# J ohnson v . W y nde r
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 06-4771

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2010

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2010 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" J o hn s on v . W y nde r " (2010). 2010 D e cisio n s . P a pe r 166. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2010/166NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 06

- 4771

_______________ CLARENCE JOHNSON,

Appellant

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

_______________ On Appeal from the United States District Court F or the Eastern District of Pennsylvania (D.C. Civi l Action No. 0 6

- c v - 0 4396 ) District Judge: Honorable Robert F. Kelly

_______________ Submitted Under Third Circuit LAR 34.1(a)

November 17 , 2010

_______________ Before: AMBRO , FISHER, and GREENBERG , Circuit Judges

(Opinion filed December 1, 2010 )

_______________ OPINION

_______________ AMBRO, Circuit Judge2

Petitioner

- Appellant Clarence Johnson appeals the District Court‟s decision dismissing his petition for a writ of habeas corpus for lack of jurisdiction. For the reasons that follow we conclude that Johnson should be permitted to file a second habeas
pe tition, and therefore remand for further proceedings.
I. Background This appeal stems from a 1988 Pennsylvania jury trial, in which Johnson was found guilty of having arranged the murder of John Philson , a doorman/lookout at an illegal lottery house

. F ollowing that trial, Johnson was found guilty of first degree murder, criminal conspiracy, and violation of the Pennsylvania Corrupt Organizations Act (“PACOA”) . He was sentenced to life in prison on the murder charge, and concurrent sentences of five to ten years‟ imprisonment for each of the other charges

. Of relevance to this appeal, the PACOA charge related solely to the operation of the lottery house, which was undisputedly an illegitimate enterprise

. Johnson unsuccessfully appeal ed his conviction, w hich became final on June 1, 1993. Johnson then filed a petition under Pennsylvania‟s Post Conviction Relief Act (“PCRA”) in July 1993. That petition was denied in January 1997 , and Johnson ‟s appeal
from that denial to the Pennsylvania Superior Court was rejected in March 19 9 8. The Pennsylvania Supreme Court refused further review. While the PCRA petition was pending, several relevant changes in the law took place. First, in 1995 Pennsylvania amended the PCRA to require that petitions under that
statute be filed within the later of one year after the date a relevant conviction becomes final, or 60 days after particular triggering events ( such as the discovery of new facts or3

the announcement of a new, and retroactive, constitutional right )

. 42 Pa. C ons . S tat

. § 9545(b)(1)

- (2). Second, in Commonwealth v. Besch , the Supreme Court of Pennsylvania held that the P A COA “does not encompass the prosecution of a wholly illegitimate enterprise, ” such as the illegal drug ring at issue in that case. 544 A.2d 655 , 661 (1996).
I n June 1999, Johnson filed his first federal habeas petition in the District C ourt. It raised a variety of claims , but did not argue that his P A COA conviction was improper under Besch . The petition was denied with prejudice in February 2 00 0 , and our Court then declined to issue a certificate of appealability. 1
I n August 2004, Johnson filed a second PCRA petition in Pennsylvania state cou rt. It argued that, under Besch , Johnson‟s P A COA conviction was wrongful. T he Court of Common Pleas rejected Johns on‟s PCRA petition as untimely in 2006 . The Pennsylvania Superior Court echoed that conclusion on appeal, though it also noted that the substance of the petition was “unquestionably meritorious.”
I n October 2006, Johnson filed another hab eas petition with the District Court, in which he argued that his P A COA conviction violated the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution because he was actually innocent of that offense . However, Johnson did so without se eking authorization from our Court . The District Court therefore concluded that it lacked subject matter jurisdiction over Johnson‟s “second or successive” petition , 28 U.S.C. § 2244(b)(3)

.

1 Johnson later moved in our Court for authorization to file a successive habeas petit ion, 28 U.S.C. § 2244(b)(3), but we refused authorization in April 2002.4

In August 2007, we granted Johnson a certificate of appealabili ty , and in September 2009 specified two issues to be briefed : 1) whether Johnson needed prior authorization to file his successive petition; and 2) whether his actual innocence claim ripened after Besch was decided in 1996 or whether it did not ripen unti l February 2007, when the Pennsylvania Supreme Court held in Kendrick v. Dist. Att’y of Phila. Cty. , 916 A.2d 529, 541 (Pa. 2007) , that Besch did not establish a new rule of law, and th erefore applied retroactively.
II. Discussion Johnson ‟s appointed coun sel states that Johnson was “required to apply to [our] Court to obtain permission to file a second or successive habeas petition” under 28 U.S.C. §2244 (b)(2), but that he failed to do so. However, we do not find the issue to be so clear. As t he Commonwe alth‟s counsel notes (with a candor we much appreciate) , a subsequent habeas petition may not constitute a “second or successive” petition for purposes of 28 U.S.C. § 2244(b) when it raises an issue that was not yet ripe when the first petition was filed. Plainly, t his exception implicates the second question posed in our certificate of appealability

— whether Johnson‟s PACOA claim ripened when Besch was decided in 1996, or when Kendrik was decided in 2007. Accordingly, we will first address whether there i s a ripeness exception to the requirements of § 2244(b), and then whether this case satisfies the requirements of that exception

. In Panetti v. Quarterman , the United States Supreme Court addressed the application of § 2244(b) to a prisoner‟s claim , advan ced for the first time in a second habeas petition, that he was mentally incompetent to be executed under Ford v.5

Wainwright , 477 U.S. 399 (1986) . 551 U.S. 930, 938 (2007). The Court held that Panetti‟s petition was not “second or successive” for purpose s of § 2244(b) because his Ford claim was not yet ripe when he filed his earlier habeas petition

. Id . at 947. Thus, it refused to force prisoners to pursue the “empty formality” of filing unripe Ford claims with their first habeas petitions, reasoning th at such a practice would “not conserve judicial resources, „reduc[e] peacemeal litigation,‟ or „streamlin[e] federal habeas proceedings.‟” Id . at 946 (citing Burton v. Stewart , 549 U.S. 147, 154 (2007)).
We see no reason to avoid applying Panetti in the context of other types of claims that ripen only after an initial federal habeas petition has been filed. However, for the reasons that follow, we conclude that Johnson‟s PACOA claim was ripe when he filed his
first federal habeas petition in June 1999

. At the outset, we note that , u nder Pennsylvania law as it stood in June 1999, it would have been difficul t or impossible for Johnson to demonstrate his actual innocence of the PACOA charge

. 2 However, that a legal argument is unlikely to succeed, or is e ven

2 Soon after Besch was filed , the Pennsylvania legislature amended the PACOA to make clear that it applied to both legitimate and illegitimate enterprises. Kendrick , 916 A.2d at 534. Thereafter, the Pennsylvania Superior Court applied that amendment retroactively, holding that its effect had been to clarify that Besch had been incorrect all along. Id . at 535 (citing Commonwealth v. Shaffer , 696 A.2d 179, 186 (Pa. Super. Ct. 1997) ( S haffer I ) ). That was the state of the law until July 1999, when the Pennsylvania Supreme Court reversed Shaffer I , holding that the legislative amendment to the PACOA applied only prospectively. Shaffer , 734 A.2d at 843

- 44 ( Shaffer II )

. Further, though the Pennsylvania Supreme Court in Shaffer II ultimately applied Besch retroactively, see Shaffer I , 696 A.2d at 180

- 81 (indicating that events that led to the conviction at issue in Shaffer occurred prior to 1996), it was not until Kendrick that it was cle ar that Besch simply clarified the meaning of the PACOA as initially drafted rather than stating a new rule of law. 916 A.2d at 535. Thus, when Johnson filed his federal habeas petition in June 1999, he may have been un able to demonstrate that the PACOA had been applied to6

futile, does not make it unripe

. See Gonzalez v. Crosby , 545 U.S. 524, 531 (2005) (noting that , if granted, a Fed. R. Civ. P. 60(b) motion based on “a purported change in
the subs tantive law governing the claim ” would improperly circumvent § 2244(b)‟s requirement that successive claims be “precertified by the court of appeals”). In that regard, we note that Kendrick itself arose in the context of a federal habeas petition in which the petitioner argued that Besch s hould be applied retroactively. In r esponse to that argument, we certified the Besch retroactivity question to the Pennsylvania Supreme
Court , but we did not dismiss the petitio n as unripe

. 916 A.2d at 531. Accordingly, we agree with the District Court that Johnson ‟s 2006 habeas petition w as a “second or successive” petition within the meaning of 28 U.S.C. § 2244( b)(2), and therefore Johnson was required to seek leave from our C ourt before proceeding with that petition. 3 However, w e think that Johnson has met the requirements of 28 U.S.C. § 2244(b)(2)(B) , and thus is entitled to file a second habeas petition raising his PACOA claim . As the Pennsylvania Superior Court has recognized, Johnson‟s claim that he was wrongfully convicted under the PACOA is “unquestionably meritorious.” Further, the United States Supreme Court has held under similar factual circumstances that it is inconsistent with the Federal Due Process Clause for Pennsylvania to “convict [ someone ] for conduct that its criminal statute, as properly interpreted, does not prohib it.” Fiore v.
him improperly

. 3 Anticipating that conclusion, Johnson argues that instead of dismissing his petition, the District Court was required to transfer it to this Court so that we could construe it as a motion to file a second or success ive habeas petition and then rule on that motion. However, that question was not included in our certificate of appealability, and , in any event, it is not necessary to reach that issue

.7

White , 531 U.S. 225, 228

- 29 (2001) (observing that “conviction and continued incarceration” based on Pennsylvania courts‟ earlier misinterpretation of a criminal statute violated due process). Notably, Pennsylvania does not appear to disagr ee with this conclusion, as it has stated in its brief to our C ourt that “the Commonwealth would likely be amenable to a conditional grant of habeas relief, intended to vacate Johns on‟s conviction under the PACOA. ” Br. of Appellees at 27

- 28. Accordingly, we hereby grant Johnson permission to proceed with his second habeas petition in the District Court and remand for further proceedings. In that regard,

we note our decision in McKeever v. Warden, SCI

- Graterford , 486 F.3d 81 (3d Cir. 2007)

— another case inv olving an improper conviction under the PACOA as interpreted
in Besch

— i n which we affirmed the District Court‟s decision to grant a writ of habeas
corpus and then stay the grant for a period of 180 days so that the Commonwealth courts could vacate the PACO A conviction and resentence the defendant. Id

. at 83

.

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

.