Fiore v. White, 97-3288

• Decision Date: 21 July 1998
• Docket Number: No. 97-3288,97-3288
• Citation: 149 F.3d 221
• Parties: 28 Envtl. L. Rep. 21,442 William FIORE v. Gregory WHITE, Warden of the State Correctional Institution at Pittsburgh; The Attorney General of the Commonwealth of Pennsylvania, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 221

149 F.3d 221

28 Envtl. L. Rep. 21,442

William FIORE v. Gregory WHITE, Warden of the State Correctional Institution at Pittsburgh; The Attorney General of the Commonwealth of Pennsylvania, Appellants.

No. 97-3288.

United States Court of Appeals Third Circuit.

Argued March 9, 1998.

Decided July 21, 1998.

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, Harrisburg, Pennsylvania, for Appellants.

James B. Lieber, M. Jean Clickner, Lieber & Hammer, Pittsburgh, Pennsylvania, Harold Gondelman (Argued), Plowman Spiegel & Lewis, Pittsburgh, Pennsylvania, for Appellee.

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

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 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. §§ 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. § 6018.401(a), a second degree felony under 35 P.S. § 6018.606(f). Although the state did not dispute the fact that Fiore had obtained a permit from the DER, see 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 §§ 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 §§ 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 §§ 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 §§ 401(a) and 606(f). In addition, the court imposed a fine of $100,000 for each conviction under §§ 401(a) and 606(f).

On direct appeal to the Pennsylvania Superior Court, ² Fiore contended that there was insufficient evidence to sustain his convictions under §§ 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 §§ 401(a) and 606(f). Scarpone v. Commonwealth, 141 Pa.Cmwlth. 560, 596 A.2d 892, 895 (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, 535 Pa. 273, 634 A.2d 1109, 1112 (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 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. § 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, 445 Pa.Super. 401, 665 A.2d 1185, 1192-93 (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 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 §§ 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. § 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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 Commonwealth v. Fiore, 445 Pa.Super. 401, 665 A.2d 1185, 1193 (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, 112 S.Ct. 475, 116 L.Ed.2d 385 (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, 53 S.Ct. 145, 77 L.Ed. 360 (1932). See Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 79...