FIORE v. WHITE, WARDEN, et al.

531US1 Unit: $U13 [04-13-02 15:20:44] PAGES PGT: OPIN
225 OCTOBER TERM, 2000
Syllabus
FIORE v. WHITE, WARDEN, et al.
certiorari to the united states court of appeals for
the third circuit
No. 98–942. Argued October 12, 1999—Question certified November 30,
1999—Decided January 9, 2001
Petitioner Fiore was convicted of violating a Pennsylvania statute prohib-
iting the operation of a hazardous waste facility without a permit, al-
though the Commonwealth conceded that he in fact had a permit. The
Pennsylvania Supreme Court declined review, but later reversed the
conviction of his co-defendant, Scarpone, who had been convicted of the
same crime at the same time. After the Pennsylvania courts denied
him collateral relief, Fiore brought a federal habeas action. The Dis-
trict Court granted the writ, but the Third Circuit reversed, believing
that the Pennsylvania Supreme Court, in Scarpone’s case, had an-
nounced a new rule of law, inapplicable to Fiore’s already final convic-
tion. This Court granted certiorari to determine whether Fiore’s con-
viction was inconsistent with the Due Process Clause, and certified to
the Pennsylvania court the question whether its decision interpreting
the statute not to apply to conduct like Fiore’s was a new interpretation
or a correct statement of the law when his conviction became final, 528
U. S. 23, 29. The latter court responded that the statute’s interpreta-
tion set out in Commonwealth v. Scarpone, 535 Pa. 273, 639 A. 2d 1109,
merely clarified the statute and was the law—as properly interpreted—
at the time of Fiore’s conviction.
Held: Fiore’s conviction fails to satisfy due process. Because Scarpone
was not new law, this case presents no retroactivity issue. Rather, the
question is simply whether Pennsylvania can convict Fiore for conduct
that its criminal statute, as properly interpreted, does not prohibit.
The Due Process Clause forbids a State to convict a person of a crime
without proving the crime’s elements beyond a reasonable doubt. See
Jackson v. Virginia, 443 U. S. 307, 316. Here, failure to possess a per-
mit is a basic element of the crime of which Fiore was convicted, and
the parties agree that the Commonwealth presented no evidence to
prove that element.
149 F. 3d 221, reversed and remanded.
After the Pennsylvania Supreme Court’s response to the
certified question, supplemental briefs were filed by James
Brandon Lieber and Harold Gondelman, for petitioner, and

531US1 Unit: $U13 [04-13-02 15:20:44] PAGES PGT: OPIN
226 FIORE v. WHITE
Per Curiam
by D. Michael Fisher, Attorney General of Pennsylvania,
Robert A. Graci, Assistant Executive Deputy Attorney Gen-
eral, and Andrea F. McKenna, Senior Deputy Attorney Gen-
eral, for respondents.
Per Curiam.
Petitioner, William Fiore, was convicted of violating a
Pennsylvania statute prohibiting the operation of a hazard-
ous waste facility without a permit. After Fiore’s convic-
tion became final, the Pennsylvania Supreme Court inter-
preted the statute for the first time, and made clear that
Fiore’s conduct was not within its scope. However, the
Pennsylvania courts refused to grant Fiore collateral relief.
We granted certiorari in part to decide when, or whether,
the Federal Due Process Clause requires a State to apply a
new interpretation of a state criminal statute retroactively
to cases on collateral review.
In order to determine if that question was in fact pre-
sented, we asked the Pennsylvania Supreme Court whether
its decision interpreting the statute not to apply to conduct
like Fiore’s was a new interpretation, or whether it was, in-
stead, a correct statement of the law when Fiore’s conviction
became final. The Pennsylvania Supreme Court, respond-
ing to our certified question, has now made clear that retro-
activity is not at issue. At the same time, that court’s inter-
pretation of its statute makes clear that Fiore did not violate
the statute. We consequently find that his conviction is not
consistent with the demands of the Federal Due Process
Clause. See Jackson v. Virginia, 443 U. S. 307, 316 (1979).
I
This case, previously described in greater detail in our
opinion certifying the state-law question to the Pennsylvania
Supreme Court, 528 U. S. 23 (1999), arises out of William
Fiore’s conviction under a Pennsylvania statute that prohib-
its “operat[ing] a hazardous waste” facility without a “per-

531US1 Unit: $U13 [04-13-02 15:20:44] PAGES PGT: OPIN
227 Cite as: 531 U. S. 225 (2001)
Per Curiam
mit.” Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993);
see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common
Pleas, Allegheny Cty., Pa., Jan. 19, 1988), App. 6. The Com-
monwealth conceded that Fiore in fact had a permit, but
argued that Fiore had deviated so dramatically from the
permit’s terms that he nonetheless had violated the statute.
And the Commonwealth’s lower courts agreed. See id., at
43–44; Commonwealth v. Fiore, 391 Pa. Super. 634, 563 A. 2d
189 (1989) (affirming Fiore’s conviction on the trial court’s
reasoning).
The Pennsylvania Supreme Court declined to review
Fiore’s case, Commonwealth v. Fiore, 525 Pa. 577, 575 A. 2d
109 (1990), and his conviction became final. Thereafter, the
Pennsylvania Supreme Court agreed to review the convic-
tion of Fiore’s co-defendant, David Scarpone, convicted of the
same crime at the same time. The Supreme Court reversed
Scarpone’s conviction on the ground that the statute meant
what it said: The statute made it unlawful to operate a facil-
ity without a permit; one who deviated from his permit’s
terms was not a person without a permit; hence, a person
who deviated from his permit’s terms did not violate the
statute. Commonwealth v. Scarpone, 535 Pa. 273, 279, 634
A. 2d 1109, 1112 (1993) (describing the Commonwealth’s in-
terpretation as “a bald fiction we cannot endorse”).
Fiore, unsuccessful in his subsequent state-court attempts
to have his own conviction set aside, see Commonwealth v.
Fiore, 445 Pa. Super. 401, 665 A. 2d 1185 (1995), appeal de-
nied, Commonwealth v. Fiore, 544 Pa. 623, 675 A. 2d 1243
(1996), brought a federal habeas corpus action. The District
Court granted the writ, but the Court of Appeals for the
Third Circuit reversed. 149 F. 3d 221 (1998). The Court of
Appeals believed that the Pennsylvania Supreme Court, in
Scarpone’s case, had announced a new rule of law, inapplica-
ble to Fiore’s already final conviction. Id., at 227. And, the
Court of Appeals said, “state courts are under no [federal]
constitutional obligation to apply their decisions retroac-

531US1 Unit: $U13 [04-13-02 15:20:44] PAGES PGT: OPIN
228 FIORE v. WHITE
Per Curiam
tively.” Id., at 222. We granted certiorari to determine
whether Fiore’s conviction was inconsistent with the Due
Process Clause. 526 U. S. 1038 (1999).
II
Because we were uncertain whether the Pennsylvania
Supreme Court’s decision in Scarpone’s case represented a
change in the law of Pennsylvania, we certified the following
question to that court:
“Does the interpretation of Pa. Stat. Ann., Tit. 35,
§ 6018.401(a) (Purdon 1993), set forth in Commonwealth
v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993),
state the correct interpretation of the law of Pennsylva-
nia at the date Fiore’s conviction became final?” 528
U. S., at 29.
We received the following reply:
“Scarpone did not announce a new rule of law. Our rul-
ing merely clarified the plain language of the statute. . . .
Our interpretation of [§ 6018.401(a)] in Scarpone fur-
nishes the proper statement of law at the date Fiore’s
conviction became final.” Fiore v. White, 562 Pa. 634,
646, 757 A. 2d 842, 848–849 (2000) (citation omitted).
The Pennsylvania Supreme Court’s reply specifies that the
interpretation of § 6018.401(a) set out in Scarpone “merely
clarified” the statute and was the law of Pennsylvania—as
properly interpreted—at the time of Fiore’s conviction. Be-
cause Scarpone was not new law, this case presents no issue
of retroactivity. Rather, the question is simply whether
Pennsylvania can, consistently with the Federal Due Process
Clause, convict Fiore for conduct that its criminal statute, as
properly interpreted, does not prohibit.
This Court’s precedents make clear that Fiore’s conviction
and continued incarceration on this charge violate due proc-
ess. We have held that the Due Process Clause of the Four-

531US1 Unit: $U13 [04-13-02 15:20:44] PAGES PGT: OPIN
229 Cite as: 531 U. S. 225 (2001)
Per Curiam
teenth Amendment forbids a State to convict a person of
a crime without proving the elements of that crime beyond
a reasonable doubt. See Jackson, 443 U. S., at 316; In re
Winship, 397 U. S. 358, 364 (1970). In this case, failure to
possess a permit is a basic element of the crime of which
Fiore was convicted. Scarpone, supra, at 279, 634 A. 2d, at
1112. And the parties agree that the Commonwealth pre-
sented no evidence whatsoever to prove that basic element.
To the contrary, the Commonwealth, conceding that Fiore
did possess a permit, see Brief for Respondents 1, necessar-
ily concedes that it did not prove he failed to possess one.
The simple, inevitable conclusion is that Fiore’s conviction
fails to satisfy the Federal Constitution’s demands. We
therefore reverse the contrary judgment of the Third Circuit
and remand this case for proceedings consistent with this
opinion.
So ordered.