Cristin v. Brennan

• Decision Date: 27 February 2002
• Docket Number: No. 00-1541.,00-1541.
• Citation: 281 F.3d 404
• Parties: Martin CRISTIN aka Danny Stanton, v. Edward BRENNAN, Superintendent; the Attorney General of the State of Pennsylvania; the District Attorney for Philadelphia County, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

281 F.3d 404

Martin CRISTIN aka Danny Stanton, v. Edward BRENNAN, Superintendent; the Attorney General of the State of Pennsylvania; the District Attorney for Philadelphia County, Appellants.

No. 00-1541.

United States Court of Appeals, Third Circuit.

Argued November 14, 2000.

Filed February 27, 2002.

COPYRIGHT MATERIAL OMITTED

Marilyn F. Murray (Argued), Thomas W. Dolgenos, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, District Attorney Philadelphia, PA, Counsel for Appellants.

Elizabeth K. Ainslie (Argued) Jennifer A. Diamantis, Schnader, Harrison, Segal & Lewis, LLP, Philadelphia, PA, Counsel for Appellee.

Before: SLOVITER, AMBRO and WEIS, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

We review the grant of a writ of habeas corpus to Martin Cristin by the United States District Court for the Eastern District of Pennsylvania.¹ The appellants are Edward Brennan, Superintendent of the State Correctional Institution at Albion, Pennsylvania, the Attorney General of the Commonwealth of Pennsylvania and the District Attorney for Philadelphia County, Pennsylvania (collectively, the "Commonwealth"). The Commonwealth alleges that the District Court violated 28 U.S.C. § 2254(e)(2) by granting Cristin an evidentiary hearing on the preliminary question of whether his procedural defaults were properly excused.

We hold that the granting of an evidentiary hearing in this case to establish the existence of an excuse to procedural default was not in error under § 2254(e)(2). The results of that hearing, however, lead us to conclude that Cristin can establish neither cause and prejudice nor a miscarriage of justice to excuse his failure to appeal from the adverse result of his petition in state court under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541, et seq. Without in any way impugning the accuracy of the District Court's reasoned disdain for the proceedings that resulted in Cristin's conviction, we must at the same time recognize those principles of constitutional federalism and comity that require petitioners to exhaust their state court remedies before seeking federal habeas corpus relief. See Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). We therefore reverse the District Court's grant of the writ.

I. FACTS AND PROCEDURAL HISTORY

Martin Cristin² and his wife Rosalinda, who is not involved in this habeas action, were convicted by a jury on October 13, 1994, in the Court of Common Pleas for Philadelphia County, Pennsylvania, of two counts each of theft by deception, fortune-telling and criminal conspiracy. Following their convictions, both Cristin and his wife were sentenced to terms of imprisonment of fifteen to thirty years. The trial, conviction and sentencing all proceeded against the defendants in absentia.

According to the evidence presented by the Commonwealth at trial, the Cristins established a fortune-telling business in north Philadelphia in early 1992 and advertised it on local television. Cristin would greet customers and answer the phone while his wife, calling herself "Madam Lucia," would then offer fortune-telling services, dispense advice and solicit money. Through that business, the Cristins defrauded two elderly individuals of their life savings, nearly $22,000. Testimony suggested that the fraud resulted in one of those individuals not seeking surgery that would have prevented her eventual blindness. Following investigation by the Philadelphia Police Department and the issuance of warrants for their arrest, the Cristins were separately arrested in Texas, and Martin Cristin was arraigned and released in September 1993. He did not appear at pre-trial hearings and similarly did not appear for trial three times prior to the October 1994 trial in absentia.

The Court of Common Pleas found that the Cristins had waived their Sixth Amendment right to confrontation by repeatedly not appearing for trial. That court apparently credited the prosecutor's unsupported arguments that the Cristins would not appear for trial because they were "gypsies" and, as such, "they have access to a network that can take them anywhere in the country." The prosecutor further argued, and the trial court appears to have accepted, that the witnesses were elderly or infirm and that the case could not be indefinitely postponed. According to Cristin's later testimony before Magistrate Judge M. Faith Angell in this habeas action, he did not appear because he believed, from the representations of his attorney, that the charges would be resolved through restitution and that no trial would occur until March 1995.

Trial proceeded in absentia on October 11, 1994. Both Cristin and his wife were represented by Vincent Campo, an associate of A. Charles Peruto, Jr. The genesis of this representation is less than clear from the record, but it appears that a different associate of Peruto entered an appearance on behalf of the Cristins without first being properly retained. Following the entry of that appearance, Peruto made various court appearances disclaiming that his office represented the Cristins because they had never paid for services his office rendered. Peruto also represented that the Cristins did not plan to appear for trial. When the court decided to proceed with trial in absentia, Campo represented both Martin Cristin and his wife, although Peruto had protested that joint representation presented a possible conflict of interest. According to Cristin, Campo had only minimal interaction with him before trial, and they had not discussed the substance of the case.

At trial, the Commonwealth introduced testimony from the Cristins' victims and their families, and Campo attempted to impeach each. The investigating police officer also testified to the conduct of his investigation. On cross-examination of the officer, Campo elicited that the Cristins were gypsies and that their alleged crimes were consistent with the "confidence games" with which gypsies were associated. Campo's defense theory was, in part, that the Cristins might have believed in their own healing abilities and that, as such, they could not have exhibited the requisite malice toward the victims. On redirect, the officer testified to the allegedly criminal habits endemic to the "gypsy community," including fortune-telling. The jury returned a guilty verdict on all counts. After finding that the Cristins "voluntarily absented themselves from the jurisdiction" and consequentially forfeited their rights to a presentence investigation, mental health evaluation, and allocution, the court sentenced each of them to the maximum permissible terms of imprisonment on each crime, running consecutively, for a total of fifteen to thirty years imprisonment. The period for appeal in criminal matters in Pennsylvania is thirty days, Pa. R.App. P. 903(a), which expired in this case in November 1994 without the filing of a notice of appeal.

Cristin voluntarily presented himself to Texas authorities in December of 1994 and began serving his sentence in early January of 1995. He and his wife, both of whom were returned to Pennsylvania, retained Norman Perlberger to represent them following incarceration. Perlberger filed post-verdict motions nunc pro tunc on their behalf in February 1995, which were denied. On March 1, 1995, Cristin filed a petition for relief pursuant to the PCRA, alleging insufficiency of the evidence and constitutional violations of due process, ineffective assistance of counsel, and cruel and unusual punishment. After oral argument on the PCRA issues, the court granted an evidentiary hearing on Cristin's claims, which was originally scheduled for February 29, 1996. The parties, however, agreed to forego that hearing and rest on supplemental briefing.

Cristin filed a petition for relief by writ of habeas corpus in the District Court on June 5, 1997. As of that date, slightly more than twenty-seven months had passed since the filing of the PCRA petition and sixteen months had transpired since the date on which the suggested evidentiary hearing would have been held. One week after the filing of the federal habeas petition the PCRA court released its opinion and order denying Cristin relief under the PCRA.³ Cristin's attorney, Perlberger, sent a letter dated June 18, 1997 to Cristin apprising him of the ruling and advising him that he must appeal by July 12, 1997. That letter implied that the attorney-client relationship between Cristin and Perlberger had been severed and that Perlberger had no intention of filing the appeal.⁴ No appeal was taken from the denial of PCRA relief, although the federal habeas petition remained pending before the District Court.

Following the docketing of the petition in the District Court, this matter was referred to Magistrate Judge Angell, who found that Cristin's claims were barred under the exhaustion doctrine for his failure to appeal both his conviction and the denial of his PCRA petition to Pennsylvania's appellate courts. The Magistrate Judge concluded that Cristin's claims were procedurally defaulted and that he could establish neither of the two excuses for procedural default — "cause and prejudice" or a "miscarriage of justice."⁵

The District Court chose not to accept the Magistrate Judge's analysis, believing that "the issue of a fundamental miscarriage of justice cannot be dismissed out of hand." The Court remanded the case to the Magistrate Judge to hold an evidentiary hearing and file a further report and recommendation. Following an evidentiary hearing at which Cristin, Peruto, the prosecutor, and various court personnel testified, the Magistrate Judge issued findings of fact and a recommendation on February 22, 1999. In that recommendation, the Magistrate Judge found cause and prejudice to excuse Cristin's failures to appeal.

The District Court adopted...