McKeever v. Warden Sci-Graterford

• Decision Date: 10 May 2007
• Docket Number: No. 05-2492.,05-2492.
• Parties: Victor McKEEVER, Appellant v. WARDEN SCI-GRATERFORD; Attorney General, Commonwealth of Pennsylvania; District Attorney, Erie County.
• Court: U.S. Court of Appeals — Third Circuit

486 F.3d 81

Victor McKEEVER, Appellant v. WARDEN SCI-GRATERFORD; Attorney General, Commonwealth of Pennsylvania; District Attorney, Erie County.

No. 05-2492.

United States Court of Appeals, Third Circuit.

Argued: February 1, 2007.

Filed: May 10, 2007.

Gene C. Schaerr, (Argued), Winston & Strawn LLP, Washington, D.C., for Counsel Appellant.

Andrea F. McKenna, (Argued), Office of Attorney General of Pennsylvania, Harrisburg, PA, Counsel for Appellees.

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

OPINION OF THE COURT

IRENAS, Senior 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, 544 Pa. 1, 674 A.2d 655 (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 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

In 1996, the Supreme Court of Pennsylvania held that PACOA did not apply to individuals who operated wholly illegitimate businesses. Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (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, 557 Pa. 453, 734 A.2d 840, 843 (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).

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.

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, 589 Pa. 719, 907 A.2d 1101 (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 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, 90 S.Ct. 1463, 25 L.Ed.2d 747 (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, 90 S.Ct. 1463 (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...