Cristin v. Wolfe

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-22-2006
Cristin v. Wolfe
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1626
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"Cristin v. Wolfe" (2006). 2006 Decisions. Paper 1552.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
____________
Case No: 05-1626
ROSALINDA CRISTIN,
Appellant
v.
WILLIAM J. WOLFE; 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. 00-cv-03506-JP)
Senior District Judge: Hon. John P. Fullam
_____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 3, 2006
BEFORE: MCKEE, SMITH and VAN ANTWERPEN,
Circuit Judges
(Filed February 22, 2006)
_____________
OPINION OF THE COURT
SMITH, Circuit Judge:
Appellant Rosalinda Cristin appeals the District Court’s dismissal of her petition
for a writ of habeas corpus under 28 U.S.C. § 2254 on the grounds of untimeliness and
procedural default. We will affirm the decision of the District Court.1
I.
Rosalinda Cristin and her husband, Martin Cristin, were tried in absentia in the
Court of Common Pleas for Philadelphia County on two counts each of theft by
deception, fortune-telling, and criminal conspiracy. The Commonwealth argued to the
trial court that these in absentia proceedings were warranted in part because the Cristins
were gypsies. During the trial, the Cristins’ counsel cross-examined the investigating
police officer and elicited the fact that the Cristins were gypsies, and the officer testified
on redirect examination about the alleged criminal habits of the gypsy community. The
Cristins were convicted by a jury on October 13, 1994, and subsequently sentenced in
absentia to the maximum permissible term of imprisonment for each crime, to run
consecutively. This led to a total imprisonment term of fifteen to thirty years, which was
outside the state sentencing guidelines range for the charged offenses. The Cristins’ trial
1
The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a). Our review of a district court’s legal conclusions
is plenary. Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997). Where a district court
holds an evidentiary proceeding, its findings of fact are reviewed for clear error. Love v.
Morton, 112 F.3d 131, 133 (3d Cir. 1997). Finally, we exercise plenary review over
statute of limitations issues. Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
2
counsel did not file an appeal from the conviction or sentence within thirty days as
required by Pennsylvania law.
In December of 1994, Rosalinda Cristin was apprehended in Harris County, Texas,
and returned to Philadelphia. Her husband subsequently surrendered. On January 12,
1995, Mrs. Cristin filed a Petition for Trial in the Court of Common Pleas, alleging that
due to misrepresentations by her husband, she had no knowledge that she was required to
appear at her October 13, 1994, trial. The court denied this petition and Mrs. Cristin did
not file an appeal. Mrs. Cristin then retained new counsel and filed a motion for post-
sentence reconsideration in the Court of Common Pleas. This motion was also denied
and not appealed.
Acting through her new counsel, Mrs. Cristin then filed a motion for collateral
relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §
9541 et seq. Mrs. Cristin then retained her former trial counsel and filed an amended
PCRA petition, alleging in part that her constitutional rights to due process were denied
by her trial in absentia, that her sentence violated the Eighth Amendment’s prohibition of
cruel and unusual punishment, that her appellate counsel rendered ineffective assistance
by failing to appeal the denial of her motion for a new trial, that the charges were not
supported by the evidence, and that the fortune-telling statute as applied to Mrs. Cristin
was unconstitutionally discriminatory. Although an evidentiary hearing was originally
scheduled, Mrs. Cristin subsequently elected to rest on the record. On June 13, 1997, the
3
PCRA court denied Mrs. Cristin’s petition.
Mrs. Cristin then retained a third attorney and filed an appeal of the denial of her
amended PCRA petition with the Pennsylvania Superior Court. On February 1, 1999, the
Superior Court affirmed the PCRA court’s denial of her PCRA petition. Mrs. Cristin did
not submit a petition seeking allowance of appeal in the Pennsylvania Supreme Court.
In the meantime, on June 5, 1997, Mr. Cristin had filed a pro se petition for a writ
of habeas corpus in the District Court for the Eastern District of Pennsylvania. See
Cristin v. Brennan, 281 F.3d 404, 408 (3d Cir. 2002). On April 11, 2000, the District
Court granted Mr. Cristin’s petition. See id. at 409. Mrs. Cristin then retained Mr.
Cristin’s counsel, who on July 11, 2000, filed a petition for a writ of habeas corpus on
Mrs. Cristin’s behalf. Action on Mrs. Cristin’s habeas petition was stayed pending the
outcome of the Commonwealth’s appeal of the District Court’s order granting Mr.
Cristin’s habeas petition.
On February 27, 2002, we reversed the District Court’s grant of Mr. Cristin’s
habeas petition in a precedential opinion, holding that Mr. Cristin had procedurally
defaulted his claims because of his failure to appeal adverse decisions in the state courts.
See id. at 409-12. We also held that Mr. Cristin’s procedural defaults could not be
excused even if Mr. Cristin “unwittingly” failed to file the necessary appeals, and that Mr.
Cristin could not rely on the allegedly ineffective assistance of his PCRA counsel to
establish cause because he did not have a Sixth Amendment right to representation at his
4
PCRA hearing. See id. at 420. Finally, we held that Mr. Cristin had not shown “actual
innocence” of his allegedly excessive term of imprisonment. See id. at 420-22.2
Meanwhile, on June 20, 2001, the District Court ordered the Commonwealth to
file a response brief addressing the timeliness of Mrs. Cristin’s habeas corpus petition.
The Commonwealth responded that her petition was time-barred under the one-year
limitations period in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2244(d)(1). In reply, Mrs. Cristin did not contest the untimeliness of her
petition, but she argued that she was entitled to equitable tolling because the counsel she
retained for her appeal in the Pennsylvania Superior Court never informed her that he was
not filing a petition for allowance of appeal in the Pennsylvania Supreme Court, never
explained to her that she could file a petition for a writ of habeas corpus in federal court,
and never explained to her the deadlines for such a filing.
On June 10, 2002, the District Court held an evidentiary hearing on whether Mrs.
Cristin was entitled to equitable tolling of AEDPA’s one-year limitations period. At the
hearing, Mrs. Cristin admitted that she had never asked her Superior Court counsel if he
had filed a petition for allowance of appeal in the Pennsylvania Supreme Court, and that
2
We noted in Cristin v. Brennan that “the awkward notion that one can be actually
innocent of a sentence, although guilty of the underlying crime, has arisen most often in
capital cases.” 281 F.3d at 421. We further noted that the courts which had extended this
awkward notion to non-capital cases had “uniformly done so in the context of testing the
factual findings on which a particular non-capital sentence is based, such as prior
convictions.” Id. at 422. Accordingly, we held that this notion had no application to Mr.
Cristin’s case because we had “no basis for concluding that some factual finding at
sentencing was erroneous.” Id.
5
he had never told her that he had done so. Her Superior Court counsel also testified that
he was not retained by Mrs. Cristin to file such a petition, and that he had not told her or
anyone else that he had filed or would file such a petition. Finally, Mrs. Cristin also
admitted that she had consulted with a prison legal aide about filing an out-of-time
petition for allowance of appeal in the Pennsylvania Supreme Court three months before
the one-year AEDPA limitations period elapsed.
The District Court then dismissed Mrs. Cristin’s habeas petition, finding both that
it was untimely and that her claims were procedurally defaulted. The District Court
consequently did not reach the merits of Mrs. Cristin’s claims, but nonetheless granted a
certificate of appealability because Cristin had raised “substantial questions of
constitutional violations.”
II.
We agree with the District Court that Mrs. Cristin’s untimely petition for a writ of
habeas corpus was not subject to equitable tolling. Equitable tolling of AEDPA’s one-
year limitations period is appropriate only where extraordinary circumstances prevented
the prisoner from filing a timely habeas petition and the prisoner has exercised reasonable
diligence. LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005). Generally, an attorney’s
delinquency is chargeable to a client and is not a basis for equitable tolling. See
Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 237 (3d Cir. 1999) (considering
the timeliness of a complaint in a Title VII case). See also Schlueter v. Varner, 384 F.3d
6
69, 76 (3d Cir. 2004) (“Generally, in a non-capital case . . . attorney error is not a
sufficient basis for equitable tolling of the AEDPA’s one-year period of limitation.”).
Nonetheless, we held in Seitzinger that equitable tolling was appropriate where “a
diligent client persistently questioned the lawyer as to whether he had filed the complaint
in time, and he affirmatively misrepresented to her that he had.” 165 F.3d at 237-38. In
contrast, we held in Schlueter that where the delay in filing a habeas petition was
allegedly caused by an attorney’s failure to file a PCRA petition, and the attorney had
allegedly represented that he would do so, but the prisoner had not taken “affirmative
steps to ensure the timely filing of a PCRA petition,” and the prisoner did not “attempt to
ascertain . . . whether [the attorney], in fact, had filed a PCRA petition,” the
circumstances did not warrant equitable tolling. See 384 F.3d at 77-78. We reasoned that
even if the attorney’s alleged misrepresentation amounted to an “extraordinary
circumstance,” the prisoner had not exercised reasonable diligence. See id.
In the circumstances of Mrs. Cristin’s case, the District Court correctly decided
that equitable tolling was not warranted. Her Superior Court counsel’s alleged failure to
inform her that he was no longer representing her and that he was not filing a petition for
allowance of appeal with the Pennsylvania Supreme Court did not give rise to the sort of
affirmative misrepresentations present in Seitzinger and Schlueter. Moreover, even if her
attorney’s alleged failure to inform Mrs. Cristin of these facts had risen to the level of an
“extraordinary circumstance,” Mrs. Cristin’s own testimony established that she was
7
aware of her attorney’s failure to petition the Pennsylvania Supreme Court for an
allowance of appeal at least three months before the end of AEDPA’s one-year period of
limitations. Given these circumstances, we find that if Mrs. Cristin had exercised
reasonable diligence, she could have filed her habeas petition in a timely manner.
Accordingly, these circumstances do not warrant equitable tolling of AEDPA’s
one-year limitations period. Consequently, the District Court properly dismissed Mrs.
Cristin’s untimely habeas petition.3
III.
Because Mrs. Cristin’s untimely habeas petition was properly dismissed, the
District Court correctly declined to reach the merits of her claims. Nonetheless, as we
also noted in Cristin v. Brennan, see 281 F.3d at 422, we view the Cristins’ in absentia
trial and sentencing, and the magnitude of their sentences, with skepticism. Accordingly,
it is with reluctance that we are constrained to hold that Mrs. Cristin filed an untimely and
procedurally-defaulted habeas petition.
The District Court’s order will be affirmed.
3
Accordingly, our decision that the District Court properly dismissed the petition does
not depend on whether Mrs. Cristin has also procedurally defaulted all of her claims.
However, we agree with the District Court’s judgment that given our reasoning in Cristin
v. Brennan and the facts of Mrs. Cristin’s case, Mrs. Cristin has procedurally defaulted
her claims. Moreover, her procedural defaults cannot be excused for cause. Finally, she
has not established her actual innocence of her sentence because she has not provided a
basis for concluding that the factual findings at her sentencing were erroneous.