                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Cristin v. Wolfe" (2006). 2006 Decisions. Paper 1552.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1552


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                                NOT PRECEDENTIAL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.
