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Wells v. Varner

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


August 3, 2009

RODNEY WELLS, APPELLANT
v.
BEN VARNER; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 03-CV-00727) District Judge: Honorable Jan E. Dubois

The opinion of the court was delivered by: Leonard I. Garth Circuit Judge

Before: BARRY, SMITH and GARTH, Circuit Judges

SUR PETITION FOR PANEL REHEARING

The petition for panel rehearing filed by Appellant having been submitted to the judges who participated in the decision of this court and are not recused, it is hereby ORDERED that the petition for panel rehearing is GRANTED. The opinion and judgment filed May 14, 2009 are hereby VACATED.

The Clerk is requested to appoint a member of this Court's bar as amicus curiae on behalf of Appellant. On March 22, 2004, a Certificate of Appealability was granted by this Court on a single issue and therefore amicus counsel's representation is limited to the following issues:

(1) whether Wells is "actually innocent" of his offense under Pennsylvania's Corrupt Organizations Act, 18 Pa. C.S. § 911, because he claims his conduct involved only wholly illegitimate businesses. See Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996) (holding that the PCOA, as originally enacted, does not apply to conduct involving only wholly illegitimate businesses); Kendrick v. Att'y Gen. of Phil. County, 488 F.3d 217 (3d Cir. 2007) (holding that Besch applies retroactively to cases on collateral review because it did not establish a new rule of law); and

(2) what effect, if any, would the panel's decision have on Wells's sentence.

The Clerk is further requested to issue a new briefing schedule and, upon completion of briefing, to calendar this appeal before the next available regular merits panel.

20090803

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