Rodney Wells v. Ben Varner

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-3752
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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
____________________________________
Before: BARRY, SMITH and GARTH, Circuit Judges
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SUR PETITION FOR PANEL REHEARING
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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:

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(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1996) (holding that the PCOA, as originally enacted, does not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.
By the Court,
/s/ Leonard I. Garth
Circuit Judge
Dated: August 3, 2009
SLC/cc: Rodney Wells
Thomas W. Dolgenos
Anne Palmer

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