                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

Satizabal v. Folino
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3056




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Recommended Citation
"Satizabal v. Folino" (2009). 2009 Decisions. Paper 1666.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1666


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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3056


                               CARLOS SATIZABAL,
                                              Appellant
                                       v.

             LOUIS FOLINO; 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. Civ. No. 06-1435)
                     Honorable Cynthia M. Rufe, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 5, 2009

                BEFORE: BARRY and GREENBERG, Circuit Judges,
                       and ACKERMAN, District Judge*

                               (Filed: March 27, 2009)


                             OPINION OF THE COURT




*The Honorable Harold A. Ackerman, Senior Judge of the United States District Court
for the District of New Jersey, sitting by designation.

GREENBERG, Circuit Judge.
       This matter comes on before this Court on an appeal from a District Court order

entered on June 19, 2007, denying appellant-petitioner Carlos Satizabal’s petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, a provision of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) enacted in 1996. Though the District Court

wrote its own opinion, it also adopted a report and recommendation of a magistrate judge

recommending that it deny the petition.

       The habeas corpus proceedings arose from Satizabal’s conviction in a

Pennsylvania common pleas court on May 4, 2001, for attempted murder, aggravated

assault, possession of an instrument of crime, and two counts of recklessly endangering

another person. The Pennsylvania trial court sentenced him to a custodial term of 20 to

40 years to be followed by a consecutive term of nine years’ probation. Satizabal filed an

appeal to the Superior Court from his conviction, arguing that his attorney had been

ineffective for failing to preserve a claim that the verdict had been against the weight of

the evidence. The Superior Court affirmed his conviction. Inasmuch as Satizabal did not

file a petition for allowance of appeal with the Pennsylvania Supreme Court, the state

appellate proceedings in his case ended on December 4, 2002, the last day on which he

could have sought Pennsylvania Supreme Court review.

       On February 16, 2003, Satizabal filed a pro se petition in a Pennsylvania common

pleas court under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.

Stat. Ann. § 9541, et seq. (West 1998). Subsequently, the PCRA court appointed an



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attorney to represent Satizabal in the PCRA proceedings. On August 5, 2003, the newly-

appointed attorney filed an amended PCRA petition on Satizabal’s behalf. The PCRA

court, however, denied the amended petition on April 27, 2004, concluding that

Satizabal’s petition was without merit. The PCRA court, in accordance with

Pennsylvania procedure, continued the matter for dismissal. The following day, April 28,

2007, the court sent a notice to Satizabal’s attorney indicating that the PCRA petition

would be dismissed in 20 days, and on June 29, 2004, the PCRA court entered its order

formally dismissing the petition, thereby triggering a 30-day appeal period.

       Satizabal, though represented by an attorney, did not file a timely notice of appeal

to the Superior Court from the dismissal of the PCRA proceedings. Instead, on August 8,

2004, after expiration of the 30-day appeal period from the June 29, 2004 order, his

attorney filed a nunc pro tunc Motion for Extension of Time to File a Notice of Appeal,

dated August 4, 2004, with the PCRA court. The PCRA court on August 24, 2004,

granted his motion and on August 31, 2004, within the time the PCRA court allowed for

an appeal, Satizabal appealed to the Superior Court. Notwithstanding the PCRA’s

attempted allowance of an appeal on an extended time basis, the Superior Court quashed

Satizabal’s appeal on July 29, 2005, as it held that the notice of appeal was not timely

because the PCRA court granted the extension after it had lost jurisdiction and, therefore,

its order allowing the late appeal was null and void. The Superior Court accordingly

believed that because the appeal to it was untimely, it lacked jurisdiction to proceed.



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Satizabal filed a petition for allocator to the Pennsylvania Supreme Court, but that court

denied his petition on March 8, 2006.

       On April 5, 2006, Satizabal filed a petition for habeas corpus in the District Court

claiming that: (1) the trial court violated his right to due process when it ruled that

Satizabal could not present evidence of another person’s motive to shoot the victim; (2)

his appellate counsel had been ineffective for failing to present on direct appeal a claim

relating to a motive for the crime, an argument that would have pointed to someone else

as the offender; and (3) his trial counsel had been ineffective for failing to preserve

Satizabal’s claim that the verdict was against the weight of the evidence. By an order

entered June 19, 2007, the District Court dismissed the petition as time barred. Though

we see no need to repeat its calculations, we point out that the District Court’s

determination undoubtedly was correct unless the time for filing the habeas corpus

petition had been sufficiently tolled, a possibility that the Court considered but rejected.

In reaching its conclusion, the Court considered both statutory and equitable tolling but

concluded that the period of statutory tolling was insufficient to save the petition and that

there was no basis for equitable tolling. Nevertheless, the District Court, without making

an analysis of the merits of Satizabal’s claims for relief beyond stating the conclusion that

Satizabal “has made a substantial showing of the denial of a constitutional right,” granted

him a certificate of appealability solely on the “limited issue of equitable tolling.”




                                              4
Satizabal then appealed to this Court.1

         The District Court had jurisdiction under 28 U.S.C. § 2254 and we would have

jurisdiction under 28 U.S.C. §§ 1291 and 2253 if the District Court issued a valid

certificate of appealability. See United States v. Cepero, 224 F.3d 256, 259-67 (3d Cir.

2000) (en banc). In any event, we have jurisdiction to determine our jurisdiction. We

exercise plenary review on this appeal. See Appel v. Horn, 250 F.3d 203, 211-12 (3d Cir.

2001).

         A court may issue a certificate of appealability only if the applicant has made “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000). The Supreme Court has

indicated that “when the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a [certificate of

appealability] should issue (and an appeal of the district court’s order may be taken) if the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right, and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Slack,

529 U.S. at 478, 120 S.Ct. at 1600-01.

         The District Court centered its opinion on a detailed discussion of its procedural




  1
   The magistrate judge’s report and recommendation did not address the substantive
issues in the case.

                                               5
determination that the petition was untimely. The Court, however, did not address the

merits of Satizabal’s three claims for relief and thus, as Slack makes clear, the Court did

not state a basis on which it could grant a certificate of appealability.

       In this regard, AEDPA requires that the grant of a certificate of appealability

“indicate which specific issue or issues satisfy the [requirements set forth by the statute].”

28 U.S.C. § 2253(c)(3). Consequently, where the district court has dismissed the petition

on procedural grounds, a certificate of appealability may issue only if the petitioner makes

both a credible showing that the procedural ruling was incorrect and a substantive

showing that the underlying habeas corpus petition alleges a deprivation of constitutional

rights. Morris v. Horn, 187 F.3d 333, 340-41 (3d Cir. 1999). Clearly, obliging a

petitioner to demonstrate that the dual requirements for a certificate of appealability have

been met is entirely appropriate, for unless there is a possibility that an appeal would be

meritorious, it would be an exercise in futility for a court of appeals to entertain an appeal

from the denial of a writ of habeas corpus merely because the appeal was timely. This

substantive requirement is in harmony with Congress’s intent expressed in AEDPA that

there be a basis for an appeal by a prisoner in a habeas case and, accordingly, that is why

a petitioner must obtain a certificate of appealability as a precondition of appeal.

       Inasmuch as the District Court did not address the basis on which Satizabal could

obtain relief, we could dismiss this motion for want of jurisdiction on the ground that the

certificate of appealability was invalid. Indeed, appellees urge us to do just that. We,



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however, believe that in fairness to Satizabal, we should remand the case to the District

Court for reconsideration of whether it will issue a certificate of appealability in

accordance with the dual requirements for it to do so. On remand, the District Court may

issue a certificate of appealability if it determines that Satizabal has “made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). But if it issues a

certificate of appealability, the Court should indicate the specific issue or issues on which

Satizabal has made his substantive showing even if it issues the certificate of

appealability solely on the procedural question involving equitable tolling.

       For the foregoing reasons we will vacate the District Court’s order of June 19,

2007, to the extent that the Court granted a certificate of appealability, and we will

remand the case to that Court to reconsider whether to grant a certificate of appealability

in accordance with the requirements set forth in this opinion. No costs shall be allowed

on this appeal.




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