Michael BLACK, Appellant v. DISTRICT ATTORNEY OF PHILADELPHIA CITY; The Attorney General of the State of Pennsylvania; Robert Shannon, Supt. Sci Mahanoy, 246 F. App'x 795

OPINION ROTH, Circuit Judge: In this habeas action under 28 U.S.C. § 2254, appellant Michael Black alleges a violation of his due process rights by his conviction based on a guilty plea for conduct that was not criminal. Black pled guilty to various crimes, including a violation of the Pennsylvania Corrupt Organizations Act (the PCOA), 18 Pa.C.S. § 911 et seq., based on the operation of his wholly illegal enterprise of cocaine distribution. Seven years later, the Supreme Court of Pennsylvania held that the PCOA does not apply to wholly illegitimate enterprises. Commonwealth v.

Besch, 544 Pa. 1, 674 A.2d 655 (1996). The Pennsylvania Supreme Court has since held that Besch relates back to the enactment of the PCOA. Kendrick v. Dist. Att’y of Philadelphia County, 591 Pa. 157, 916 A.2d 529, 541 (2007). Consistent with Kendrick, we find that Black did not receive valid notice of the charges against him and that his actual innocence of the charge of violation of the PCOA justifies equitable tolling of the statute of limitations. Accordingly, we will vacate the District Court’s order denying habeas relief and remand this matter to the District Court. I.

BACKGROUND On July 10, 1989, Black pled guilty to third-degree murder, possessing an instrument of crime (PIC), possession with intent to deliver a controlled substance (PWID), criminal conspiracy and violating the PCOA. Pursuant to the plea agreement, he was sentenced to consecutive sentences of ten to twenty years each for the third degree murder and PCOA violation convictions, concurrent sentences of five to ten years each for the PWID and conspiracy convictions, and a concurrent sentence of two to five years for PIC.

On January 15,1997, Black filed a pro se petition under Pennsylvania’s Post Conviction Refief Act (PCRA), 42 Pa.C.S. § 9541, et seq. The PCRA court dismissed the amended petition on June 25, 1998. The Superior Court affirmed this decision on September 28, 1999. Commonwealth v. Black, 747 A.2d 408 (Pa.Super.1999). On August 21, 2000, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Black, 564 Pa. 723, 766 A.2d 1243 (Pa.2000). On March 22, 2001, Black filed an Application for Leave to File Original Process and Petition for Writ of Habeas Corpus in the Supreme Court of Pennsylvania.

The court granted his petition for leave but denied the habeas petition. Black v. Shannon, No. 40 EM 2001, June 11, 2001. On July 12, 2001, Black filed the instant Petition for Writ of Habeas Corpus, arguing that his guilty plea to the state law crime of violating the PCOA was not knowing and intelligent and/or the evidence was insufficient to sustain his conviction since his was a wholly illegitimate enterprise and the Pennsylvania Supreme Court ruled, seven years after his guilty plea, that the PCOA does not apply to wholly illegitimate enterprises. See Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996).

In a Memorandum and Order dated April 4, 2002, the District Court held that

(1) Black was not entitled to equitable tolling of the Anti-terrorism and Effective Death Penalty Act (AEDPA) statute;

(2) Beech announced a new rule of law that was not retroactively applicable to Black’s PCOA conviction;

(3) Black was not actually innocent of violating the PCOA. We granted a certificate of appealability to Black on the question of “whether the District Court erred by refusing to equitably toll the one-year period of limitation prescribed in 28 U.S.C. § 2244(d)(1) based on Appellant’s claim that he is actually innocent of violating the Pennsylvania Corrupt Organizations Act as interpreted in Commonwealth v.

Besch, 544 Pa. 1, 674 A.2d 655 (1996).” Because the resolution of this case depended on whether the rule in Beech applies retroactively, a question then pending before the Pennsylvania Supreme Court after being certified to them by this Court in Kendrick v. Dist. Att’y of Philadelphia County, 591 Pa. 157, 916 A.2d 529 (2007), we held Black’s appeal curia advieari vult pending the resolution of that question. The Pennsylvania Supreme Court has now concluded that the rule in Besch applies retroactively, relating back to the day of enactment. Id. at 538-39.

Following the issuance of the Pennsylvania Supreme Court’s decision in Kendrick, we asked the parties to file memoranda regarding the effect of the decision on this case. In his response, Black argues that the decision in Kendrick shows that Beech represents the meaning of the PCOA at the time Black pleaded guilty and that his conviction should therefore be set aside. The Commonwealth agrees that the conviction should be vacated and asks that we remand for resentencing. II. DISCUSSION The District Court had jurisdiction over this habeas action under 28 U.S.C. §§ 2241(

a) and 2254(a). We have appellate jurisdiction under 28 U.S.C. § 2253. Our review of the timeliness of a federal habeas application is plenary, Hartmann v. Carroll, 492 F.3d 478, 478 (3d Cir.2007), as is the standard for review of a decision to grant or deny equitable tolling. Brineon v. Vaughn, 398 F.3d 225, 231 (3d Cir.2005). The two questions to be addressed before relief may be granted are (1) whether Black’s claim is barred by his delay in filing for habeas relief, and (2) whether Black’s guilty plea was involuntary because it was made without a valid disclosure of the charge he faced.

Petitions for habeas relief must be filed within one year of the date on which the state court judgment became final. 28 U.S.C. § 2244(d)(1). For judgments that became final prior to the enactment of the AEDPA, the one year statute of limitations runs from April 24, 1996, the date of enactment of AEDPA. Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998). The running of the statute of limitations is tolled while state court post-conviction review is pending. Black concedes that, while the statute of limitation was tolled several times for appeals in state court, he did not file within the statute of limitations.

His filing for habeas relief is therefore time barred unless it qualifies for equitable tolling. We have held that equitable tolling may be applied where principles of equity would make rigid application of the statute unfair. Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir.1998). Generally this will occur when the appellant has been prevented from asserting his rights in some extraordinary way. Id. Here, the rigid application of the statute would result in upholding a sentence for a crime that in fact was not a crime.

Such a result would be manifestly unjust, and so we find that equitable tolling of the statute of limitations is appropriate. A guilty plea can not support a judgment of guilt unless it was made voluntarily. The plea can not be voluntary in a constitutional sense if the defendant did not receive “real notice of the nature of the charge against him.” Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Here, defendant pled guilty to violating the PCOA believing that the statute could be applied to his cocaine distribution business.

Under Besch, conduct of an entirely illegitimate enterprise does not violate the PCOA. Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655, 661 (1996). According to Kendrick, the rule in Besch applies to Black’s PCOA conviction. Thus, the notice given to Black of the nature of the charge against him incorrectly suggested that he could have violated the PCOA, rendering his guilty plea constitutionally invalid. III.

CONCLUSION The District Court’s denial of the writ of habeas corpus will be vacated and this matter remanded to the District Court (1) to grant habeas relief unless the Commonwealth chooses to permit Black to withdraw his guilty plea on the PCOA count and (2) to take such further action on the remaining counts as it deems appropriate.