No: 00-1541 MARTIN CRISTIN aka DANNY STANTON v. Edward Brennan, Superintendent

Filed February 27, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 00-1541
MARTIN CRISTIN aka DANNY STANTON
v.
EDWARD BRENNAN, SUPERINTENDENT; THE
ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA; THE DISTRICT ATTORNEY
FOR PHILADELPHIA COUNTY,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil Action No. 97-cv-03856)
District Judge: Honorable John P. Fullam
Argued November 14, 2000
Before: SLOVITER, AMBRO and WEIS, Circuit Judg es
(Filed: February 27, 2002)
Marilyn F. Murray, Esq. (Argued)
Thomas W. Dolgenos, Esq.
Ronald Eisenberg, Esq.
Arnold H. Gordon, Esq.
Lynne Abraham, Esq., District
Attorney
1421 Arch Street
Philadelphia, PA 19102
Counsel for Appellants
Elizabeth K. Ainslie, Esq. (Argued)
Jennifer A. Diamantis, Esq.
Schnader, Harrison, Segal &
Lewis, LLP
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Counsel for Appellee
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

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Attorney for Philadelphia County, Pennsylvania (collectively,
the "Commonwealth"). The Commonwealth alleges that the
District Court violated 28 U.S.C. S 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 S 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. S 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
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1. The Court expresses its gratitude to Cristin’s counsel, Elizabeth
Ainslie, for her highly professional and competent manner of handling
this appeal.
2
require petitioners to exhaust their state court remedies
before seeking federal habeas corpus relief. See Castille v.
Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S.
509, 518 (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

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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
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2. It appears that the Appellee’s true name is Daniel Stanton, but that he
has proceeded under the name Martin Cristin, his wife’s surname, in
this action and he is imprisoned under that name.
3
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

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4
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
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3. There is evidence suggesting that Cristin received notice of the adverse
disposition of his PCRA petition as early as May 1997.
5
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

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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.
_________________________________________________________________
4. That letter stated: "You have previously told me that you do not wish
me to continue handling your case and I assume that you will get other
counsel or handle the appeal yourself if you choose to appeal this.
Remember you have until July 12, 1997 to file an appeal."
5. The Supreme Court has explained the two excuses for procedural
default as follows: "In all cases in which a state prisoner has defaulted
his federal claims in state court[,] . . . federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S.
722, 750 (1991).
6
The District Court adopted the new findings of the
Magistrate Judge. The Court proceeded to conclude that
the decision to proceed to trial in absentia, and indeed the
whole conduct of the trial itself, were tainted by references
to the Cristins’ ethnic heritage as gypsies in violation of
their Fourteenth Amendment rights to equal protection. The
Court further found that Campo’s representation of Cristin
was constitutionally inadequate due to the dearth of client
communication before trial and Campo’s defense strategy
based on the Cristins’ ethnicity. Lastly, the Court
concluded that Cristin’s fifteen to thirty year sentence
resulted in part from ethnic stereotyping at trial and was "a
clear violation of the equal protection clause." The Court
granted a writ of habeas corpus on April 11, 2000, 6 and the
Commonwealth immediately appealed.
This Court has jurisdiction pursuant to 28 U.S.C.
SS 1291 and 2253. No certificate of appealability is required
for the Commonwealth to appeal the District Court’s order.
Fed. R. App. P. 22(b)(3). In this habeas appeal, we exercise

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plenary review over the District Court’s legal conclusions
and review its findings of fact for clear error. Rios v. Wiley,
201 F.3d 257, 262 (3d Cir. 2000); Lambert v. Blackwell,
134 F.3d 506, 512 (3d Cir. 1997); Caswell v. Ryan, 953
F.2d 853, 857 (3d Cir. 1992); Bond v. Fulcomer , 864 F.2d
306, 309 (3d Cir. 1989).
II. CRISTIN’S PROCEDURAL DEFAULTS
It is uncontested that Cristin has procedurally defaulted
the claims upon which he requests habeas corpus relief by
failing to appeal those claims in state court. The procedural
default doctrine is closely related to the requirement that
petitioners exhaust state remedies before making habeas
claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999). A prisoner has not exhausted his remedies in state
court "if he has the right under the law of the State to
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6. The District Court concluded, inter alia , with the following statement
reflecting its well-taken concern with the prosecution’s tactics in this
case: "I find it disturbing indeed that the attorneys for the
Commonwealth would even attempt to justify what occurred in this
case." Dist. Ct. Op. at 9-10 (April 11, 2000).
7
raise, by any available procedure, the question presented."
28 U.S.C. S 2254(c); see also Rose v. Lundy, 455 U.S. 509,
518-19 (1982); Ex parte Royall, 117 U.S. 241, 251 (1886).
No party has suggested that Cristin has the right to
continue to pursue his current claims in state court.7
However, as the Supreme Court pointed out in O’Sullivan,
federal courts must "ask not only whether a prisoner has
exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.e., whether he has
fairly presented his claims to the state courts." O’Sullivan,
526 U.S. at 848 (emphasis in original). The "fairly
presented" requirement has long been a component of the
exhaustion doctrine and requires that the prisoner present
his federal habeas claims at all levels of state court
adjudication. See Picard v. Connor, 404 U.S. 270, 275-76
(1971); Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.
1984). The failure to "fairly present" federal claims in state
court bars the consideration of those claims in federal court
by means of habeas corpus because they have been
procedurally defaulted. Coleman v. Thompson, 501 U.S.
722, 731 (1991); Wainwright v. Sykes, 433 U.S. 72, 90
(1977).
As explained by the Supreme Court, "[t]his exhaustion
requirement is . . . grounded in principles of comity; in a
federal system, the States should have the first opportunity
to address and correct alleged violations of state prisoner’s
federal rights." Coleman, 501 U.S. at 731. By refusing to
consider claims that have been procedurally defaulted in
state court, the doctrine "encourage[s] state prisoners to
seek full relief first from the state courts, thus giving those
courts the first opportunity to review all claims of

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constitutional error." Lundy, 455 U.S. at 518-19. At the
same time, the doctrine facilitates the proper review of the
federal claims, for those claims "that have been fully
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7. It is uncontested that no state proceeding remains available to Cristin
in which he could make the current claims because a second and
subsequent PCRA petition would be untimely and its claims would be
barred as previously waived. See 42 Pa. Cons. Stat. Ann. SS 9545(b)(1),
9543(a)(3); see also Lines v. Larkins, 208 F.3d 153, 163-66 (3d Cir.
2000) (discussing the procedural constraints on second and subsequent
PCRA petitions).
8
exhausted in state courts will more often be accompanied
by a complete factual record to aid the federal courts in
their review." Id. at 519.
In this case, Cristin twice failed to present the claims of
error he asserts in federal court to the appellate courts of
the Commonwealth. Cristin failed to take a direct appeal
from his conviction to the Superior Court. A prisoner who
fails to take a direct appeal procedurally defaults the review
of all federal claims in habeas corpus. See Murray v.
Carrier, 477 U.S. 478, 491 (1986) ("Failure to raise a claim
on appeal reduces the finality of appellate proceedings,
deprives the appellate court of an opportunity to review trial
error, and ‘undercut[s] the State’s ability to enforce its
procedural rules.’ " (citation omitted)).
Likewise, Cristin did not appeal the rejection of his PCRA
petition to the Superior Court, thereby creating a second
procedural default. Coleman, 501 U.S. at 750. By failing to
seek direct review in the Pennsylvania appellate courts,
Cristin denied the Commonwealth "an opportunity to act on
his claims before he presents those claims to a federal
court in a habeas petition." O’Sullivan, 526 U.S. at 842
(requiring state prisoners to seek state court review of
federal claims even if state appellate review is
discretionary). Cristin argues, however, that he should be
excused from his failure to appeal because delays in the
PCRA process made relief there effectively unavailable. We
stated in Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.
1986), that "inexcusable or inordinate delay by the state in
processing claims for relief may render the state remedy
effectively unavailable." In that case, thirty-three months
had passed after the petitioner’s PCRA filing without
resolution. Id. This, we found, excused the petitioner’s
failure to exhaust his state court remedies. Id. at 356.
The thirty-three month delay in Wojtczak remains the
shortest delay held to render state collateral proceedings
ineffective for purposes of the exhaustion requirement. See,
e.g., Coss v. Lackawanna County Dist. Att’y , 204 F.3d 453,
460 (3d Cir. 2000) (en banc) (seven year delay), rev’d on
other grounds, 532 U.S. 394 (2001); Story v. Kindt, 26 F.3d
402, 406 (3d Cir. 1994) (nine year delay). Cristin requests
that this Court further reduce the threshold of delay

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9
making state court processes ineffective. We see no reason
to do so. The total time elapsing between Cristin’s filing of
the PCRA petition on March 1, 1995, and the filing of his
habeas petition in federal court on June 5, 1997, is
approximately twenty-seven months. During that time, the
PCRA court held an oral argument on November 14, 1995,
and scheduled an evidentiary hearing for February 29,
1996, although that evidentiary hearing was eventually
waived. The PCRA petition was finally denied on June 12,
1997, one week after Cristin filed his habeas petition. While
we much prefer that the PCRA process advance more
expeditiously, we do not find its delay to have rendered
relief for Cristin "effectively unavailable." Indeed, unlike
Wojtczak, in which only marginal progress had been made
during the thirty-three month pendency of the PCRA
petition, the state courts were responsive to Cristin’s case,
had held argument, and offered a hearing. Cristin only
awaited a ruling. Given this activity and the shorter amount
of time, we do not find this case analogous to Wojtczak.
Moreover, the state court did rule on Cristin’s PCRA
petition soon after he filed his habeas petition in federal
court. Indeed, our cases have instructed district courts to
stay their consideration of habeas petitions when previously
stalled state proceedings resume. See Walker v. Vaughn, 53
F.3d 609, 615 (3d Cir. 1995) ("As a matter of general
practice, we assume that a district court which has excused
exhaustion but has not yet embarked upon proceedings of
substance will stay its hand once there is reliable evidence
that the state action has been reactivated."); Burkett v.
Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987). Thus,
had the District Court been aware of the PCRA court’s
ruling, it should have stayed the federal proceedings
pending Cristin’s appeal. Though such a stay was made
irrelevant by Cristin’s failure to appeal the denial of his
PCRA petitions, in these circumstances we cannot state
that the PCRA process was ineffective.
Having procedurally defaulted any potential habeas
corpus claims by failing twice to take an appeal, Cristin
must look to the few exceptions available to the procedural
default doctrine for salvation of his claims. As noted above,
the Supreme Court has explained that, following a
10
petitioner’s procedural default, "federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice." Coleman, 501 U.S. at 750. To show
cause and prejudice, "a petitioner must demonstrate some
objective factor external to the defense that prevented
compliance with the state’s procedural requirements." Id. at

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753. "To show a fundamental miscarriage of justice, a
petitioner must demonstrate that he is actually innocent of
the crime . . . by presenting new evidence of innocence."
Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001)
(citations omitted). Thus, Cristin must establish either
"cause and prejudice" for both defaults or demonstrate that
a "fundamental miscarriage of justice" will result from his
continued incarceration.8
III. EVIDENTIARY HEARINGS ON PROCEDURAL DEFAULT
Before considering whether Cristin can satisfy either of
these two excuses to the procedural default rule, we
address first the Commonwealth’s contention that the
District Court should not have granted Cristin an
evidentiary hearing on those excuses under 28 U.S.C.
S 2254(e)(2).
As revised by the 1996 Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996), S 2254(e)(2) reads as follows:
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that --
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8. As a third avenue for avoiding the effect of his procedural defaults,
Cristin could argue that the Commonwealth waived the procedural
default. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Hull v. Kyler,
190 F.3d 88, 103 (3d Cir. 1999). Cristin has not presented a waiver
argument in this appeal and could not, for the courts of the
Commonwealth have given no indication that they might further consider
the merits of his claims despite his earlier failures to appeal.
11
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
The Commonwealth argues that S 2254(e)(2)’s constraint
on a court’s power to conduct evidentiary hearings is not
limited to the merits of a habeas corpus claim, but limits all
hearings in habeas actions. Thus, the Commonwealth
submits that because Cristin cannot satisfy the

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requirements of S 2254(e)(2), the hearing should not have
been held and we must excise from our deliberation all
facts developed at that hearing. We disagree. For the
reasons we explain, it was within the plenary authority of
the District Court to order an evidentiary hearing on the
subject of Cristin’s excuses for his procedural default and
S 2254(e)(2) is inapplicable to those hearings.
Section 2254(e)(2) was enacted as part of AEDPA, which
"amended the federal habeas statute in such a way as to
limit the availability of new evidentiary hearings on habeas
review." Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.
2000), cert. denied, 531 U.S. 1084 (2001). The
Commonwealth argues that Cristin cannot establish his
entitlement to an evidentiary hearing under S 2254(e)(2)
because he cannot show that his "claim" relies upon either
(1) "a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable," or (2) "a factual predicate that
could not have been previously discovered through the
exercise of due diligence." 28 U.S.C. S 2254(e)(2)(A).
Furthermore, the Commonwealth points out that, even
presuming his claim proceeded under one of these
rationales, Cristin cannot make the requisite showing "by
12
clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense." Id. at
S 2254(e)(2)(B). Because Cristin has neither attempted to
show his actual innocence of the crimes of which he was
convicted nor to base his claim on a new rule of
constitutional law or a previously undiscovered factual
predicate, however, his ability to satisfy S 2254(e)(2)(A) or
(B) is not before us and we need not address it.
We conclude that the plain meaning of S 2254(e)(2)’s
introductory language does not preclude federal hearings
on excuses for procedural default at the state level, and
therefore the District Court did not err in conducting such
a hearing in Cristin’s case. Section 2254(e)(2) was not
intended to govern all evidentiary hearings in habeas
actions. See Williams v. Taylor, 529 U.S. 420, 431 (2000);
Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997). Its
applicability is limited by the introductory language of
subsection (2), which states that "[i]f the applicant has
failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing
on the claim unless [the requirements of subsections (A)
and (B) are met]." 28 U.S.C. S 2254(e)(2) (emphases added).
We reject the Commonwealth’s argument that the plain
meaning of this introductory language encompasses
evidence that might establish cause and prejudice or a
miscarriage of justice and that Cristin’s failure to develop
that evidence before the state courts now bars an
evidentiary hearing on the subject.
The Supreme Court recognized in Townsend v. Sain , 372

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U.S. 293 (1963), that district courts are vested with broad
power to grant evidentiary hearings in habeas cases. Chief
Justice Warren stated for the Court:
State prisoners are entitled to relief on federal habeas
corpus only upon proving that their detention violates
the fundamental liberties of the person, safeguarded
against state action by the Federal Constitution.
Simply because detention so obtained is intolerable,
the opportunity for redress, which presupposes the
opportunity to be heard, to argue and present
evidence, must never be totally foreclosed. It is the
13
typical, not the rare, case in which constitutional
claims turn upon the resolution of contested factual
issues. Thus a narrow view of the hearing power would
totally subvert Congress’ specific aim [in passing early
habeas legislation], of affording state prisoners a forum
in the federal trial courts for the determination of
claims of detention in violation of the Constitution. The
language of Congress, the history of the writ, the
decisions of this Court, all make clear that the power
of inquiry on federal habeas corpus is plenary.
Therefore, where an applicant for a writ of habeas
corpus alleges facts which, if proved, would entitle him
to relief, the federal court to which the application is
made has the power to receive evidence and try the
facts anew.
Townsend, 372 U.S. at 312. After setting out the plenary
power of the courts to conduct evidentiary hearings in
habeas actions, the Supreme Court in Townsend went on to
describe six circumstances in which the granting of an
evidentiary hearing would be "mandatory." Id. at 313.9
Following Townsend it was generally recognized that district
courts had plenary authority to conduct evidentiary
hearings in their discretion, constrained only by those six
occasions in which a hearing was required. See Campbell,
209 F.3d at 286 (discussing Townsend post-AEDPA);
Hakeem v. Beyer, 990 F.2d 750, 770-71 (3d Cir. 1993)
(discussing Townsend pre-AEDPA); Keller v. Petsock, 853
F.2d 1122, 1129 (3d Cir. 1988) (same).
Townsend was overruled, but only in part, 10 by Keeney v.
_________________________________________________________________
9. Under Townsend, an evidentiary hearing was mandatory
[i]f (1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported by
the record as a whole; (3) the factfinding procedure employed by the
state court was not adequate to afford a full and fair hearing; (4)
there is a substantial allegation of newly discovered evidence; (5) the
material facts were not adequately developed at the state-court
hearing; or (6) for any reason it appears that the state trier of fact
did not afford the habeas applicant a full and fair fact hearing.

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Townsend, 372 U.S. at 313.
10. See Keeney, 504 U.S. at 5 (overruling Townsend only "in this
respect"), 18 ("[t]his holding, of course, directly overrules a portion of
Townsend . . . .") (O’Connor, J., dissenting); Cardwell v. Greene, 152
F.3d 331, 336 (4th Cir. 1998).
14
Tamayo-Reyes, 504 U.S. 1 (1992). Keeney aligned the
Supreme Court’s standards for the grant of an evidentiary
hearing in habeas cases with its standards for the
consideration of procedurally defaulted claims generally.
Habeas claims that had been procedurally defaulted could
only be addressed if the petitioner showed cause and
prejudice or a miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (applying"cause and
prejudice" to the failure to appeal); Wainwright v. Sykes,
433 U.S. 72, 88 (1977) (adopting a "cause and prejudice"
standard when the petitioner failed to make a
contemporaneous objection). Keeney established that when
a petitioner failed to introduce facts in state proceedings, he
must "show cause for his failure to develop the facts in
state-court proceedings and actual prejudice resulting from
that failure" to supplement the state record with a federal
evidentiary hearing. Keeney, 504 U.S. at 11. Alternatively,
a petitioner’s failure to develop a factual record was
excused "if he can show that a fundamental miscarriage of
justice would result from failure to hold a federal
evidentiary hearing." Id. at 12. Thus, the Court in Keeney,
by employing the "cause and prejudice" and"miscarriage of
justice" standards to the failure to develop a factual record,
used the same standards that excuse a litigant’s procedural
default. Id. at 10.
The result was parallel standards for the bringing of
procedurally defaulted claims and the introduction of facts
in support of those claims. Id. The Supreme Court intended
this uniformity because "little can be said for holding a
habeas petitioner to one standard for failing to bring a
claim in state court and excusing the petitioner under
another, lower standard for failing to develop the factual
basis of that claim in the same forum." Keeney, 504 U.S. at
10.
Keeney never applied, however, to all requests for
evidentiary hearings in habeas actions. The Court described
its holding as relevant only when the petitioner"fail[ed] to
develop" the facts of his habeas claim in state court.
Keeney, 504 U.S. at 5, 10. Indeed, because the Keeney
standard was intended to mirror the procedural default of
habeas claims generally, its application was limited to
15
circumstances in which the material facts were not
developed in state court due to the fault of the petitioner.
Put differently, Keeney provided only the"correct standard
for excusing a habeas petitioner’s failure to develop a

-- 12 of 22 --

material fact in state-court proceedings." Id. at 5.
The Supreme Court recently explained that "the opening
clause of S 2254(e)(2) codifies Keeney’s threshold standard
of diligence, so that prisoners who would have had to
satisfy Keeney’s test for excusing the deficiency in the
state-court record prior to AEDPA are now controlled by
S 2254(e)(2)." Williams, 529 U.S. at 434. The Court made
clear in Williams that, like Keeney,S 2254(e)(2) only applies
when a petitioner "failed to develop" the factual basis of a
claim. It interpreted the introductory language of
S 2254(e)(2) -- "[i]f the applicant has failed to develop the
factual basis of a claim in State court proceedings" -- to
require a two-part inquiry. "We ask first whether the factual
basis was indeed developed in state court, a question
susceptible, in the normal course, of a simple yes or no
answer." Id. at 431. When the answer is"no," the Court
went on to attribute to the word "failed" a requirement that
the lack of development in the factual record be the fault of
the petitioner. "In its customary and preferred sense, ‘fail’
connotes some omission, fault or negligence on the part of
the person who has failed to do something." Id. at 431-32
(citing various dictionaries). Thus, "a failure to develop the
factual basis of a claim is not established unless there is a
lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel." Id.; see Love, 112 F.3d
at 136; see also Baja v. Ducharme, 187 F.3d 1075, 1078-79
(9th Cir. 1999); Miller v. Champion, 161 F.3d 1249, 1253
(10th Cir. 1998); Cardwell v. Greene, 152 F.3d 331, 337-38
(4th Cir. 1998), overruled on other grounds by Bell v. Jarvis,
236 F.3d 149, 160 (4th Cir. 2000) (en banc); McDonald v.
Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998); Burris v.
Parke, 116 F.3d 256, 258 (7th Cir. 1997).
Simply put, Cristin is not in that group that "would have
had to satisfy Keeney’s test," Williams, 529 U.S. at 434,
because the issue on which the District Court granted him
an evidentiary hearing -- whether he can establish an
excuse for his procedural default -- is not one for which he
16
"failed to develop" a record in state court. Even prior to
Keeney, it was recognized that a petitioner’s procedural
default presents a question of federal law. The Supreme
Court has "consistently held that the question of when and
how defaults in compliance with state procedural rules can
preclude our consideration of a federal question is itself a
federal question." Johnson v. Mississippi, 486 U.S. 578, 587
(1988) (quoting Henry v. Mississippi, 379 U.S. 443, 447
(1965)); see also Murray v. Carrier, 477 U.S. 478, 489
(1986) (describing the "question of cause" as"a question of
federal law"). We cannot generally expect petitioners to
present in state court facts they may only need under
federal law in a later federal proceeding to excuse a
procedural default. Moreover, rarely would a state court
afford a petitioner the opportunity to develop the facts
establishing cause and prejudice or a fundamental
miscarriage of justice to excuse a procedural default,

-- 13 of 22 --

because those phrases have significance only in the context
of federal habeas proceedings.11 For example, in this case,
although the procedural default itself obviously occurred in
state court, we are aware of no opportunity accorded
Cristin in that court to develop facts explaining his two
failures to appeal.12 Indeed, it would be surpassing strange
to require Cristin to establish a record in state court about
why he is not appealing a particular judgment while
simultaneously failing to appeal that judgment. 13 See Love,
_________________________________________________________________
11. Such a rare case could exist when a petitioner relies solely on
ineffective assistance of counsel to establish both cause and prejudice
and as a claim for substantive habeas relief. In those cases, the Supreme
Court has held that ineffective assistance claims must be presented to
the state courts to satisfy the exhaustion requirement. See Murray v.
Carrier, 477 U.S. 478, 488-89 (1986).
12. While we recognize that Cristin had the opportunity to explain his
failure to take an appeal at a PCRA hearing, that is only half the
procedural default at issue in this case. The District Court afforded
Cristin the only opportunity to establish that his failure to take an
appeal from the PCRA ruling was itself excused under either the cause
and prejudice or miscarriage of justice rationales.
13. We recognize that sometimes a petitioner will develop facts in state
court that later prove relevant to excusing a procedural default during
federal proceedings. These occurrences, however, are coincidental, for it
is rare that a state court intentionally provides a forum in which the
petitioner can develop facts that might one day excuse his procedural
default. It would be unreasonable to require a petitioner to rely on such
coincidences to receive an evidentiary hearing on his procedural default.
17
112 F.3d at 136 (finding the petitioner did not"fail to
develop" the factual basis of his double jeopardy claim in
state court because the abrupt entry of a mistrial by the
court prevented the development of a record at the time).
Such a requirement would pose a Catch-22 for habeas
petitioners.
Furthermore, we are aware of no case in which either the
Keeney standard or its successor, S 2254(e)(2), has been
employed to limit whether an evidentiary hearing was
available to evaluate whether a petitioner’s procedural
default may be excused.14 For example, in Williams v.
Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996), the Eleventh
Circuit ordered a hearing on the petitioner’s new factual
claims of ineffective assistance of counsel, claims that went
to both cause and prejudice excusing his failure to
_________________________________________________________________
14. Nor are we aware of a case in which the Keeney standard has been
employed to limit the availability of an evidentiary hearing on excuses to
procedural default in an action under 28 U.S.C.S 2255. The Supreme
Court held in United States v. Frady, 456 U.S. 152, 167 (1982), that the
same "cause and actual prejudice" standard in habeas corpus applied to
procedural defaults in S 2255 actions for federal prisoners. See also Reed
v. Farley, 512 U.S. 339, 354 (1994) ("Where the petitioner -- whether a
state or federal prisoner -- failed properly to raise his claim on direct

-- 14 of 22 --

review, the writ is available only if the petitioner establishes ‘cause’ for
the waiver and shows ‘actual prejudice resulting from the alleged . . .
violation,’ " quoting Wainwright v. Sykes , 433 U.S. 72, 84 (1977)). Thus,
the Keeney standard for the introduction of evidence, when the
petitioner failed to develop it during the original trial, applies in S 2255
suits in the same manner in which it applied toS 2254 suits prior to
AEDPA.
Nonetheless, federal appellate courts have granted evidentiary hearings
to determine if an excuse to procedural default exists in S 2255 claims
without mentioning whether the petitioner must meet the Keeney
standards before receiving such a hearing. See Bousley v. United States,
523 U.S. 614, 623-24 (1998) (requiring the District Court to conduct an
evidentiary hearing on the question of whether petitioner could show a
miscarriage of justice that might excuse his procedural defaults); United
States v. Jones, 172 F.3d 381, 384-85 (5th Cir. 1999) (per curiam)
(same). This is good evidence that the "failed to develop" language in
Keeney, and, by implication, the standard inS 2254(e)(2) adopted from it,
do not apply to evidentiary hearings on whether a petitioner can
establish an excuse for an earlier procedural default.
18
introduce those facts in state court and to substantive
habeas relief. In ordering the hearing, the Court noted that
Keeney restricted the availability of a hearing on the
application of the new evidence to the merits of his petition,
but stated that the evidence also went to whether he could
excuse the procedural default and that the petitioner was
therefore entitled to a hearing on that issue. "Although
Williams must show cause before he is entitled to an
evidentiary hearing to present the new evidence to support
his primary claim of ineffective assistance of trial counsel,
Keeney, 504 U.S. at 11-12, . . . [he] is entitled to an
evidentiary hearing for purposes of establishing cause and
prejudice if he has proffered specific facts sufficient to
support such a finding." Turpin, 87 F.3d at 1211. The
District Court in this case did no differently, although it
rested its conclusion on a different excuse for procedural
default. It found that Cristin had proffered facts that might
show a miscarriage of justice, thereby potentially excusing
his procedural defaults, and thus returned the case to the
Magistrate Judge to conduct an evidentiary hearing on the
subject.
Thus, it was within the District Court’s discretion,
described in Townsend, to grant an evidentiary hearing to
establish cause and prejudice or a miscarriage of justice to
excuse Cristin’s procedural defaults. We are unaware of
how permitting Cristin the opportunity to develop facts on
this issue of federal law would in any way impugn our
"respect for state procedural rules" or diminish the
importance federal courts must place on "conceptions of
comity and of the importance of finality in state criminal
litigation." Coleman, 501 U.S. at 747. Cristin cannot be
faulted in this federal forum for not having previously
presented the facts underlying arguments that would have
been, on the whole, irrelevant or premature before state
courts.

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Cristin presents an additional argument in support of the
propriety of the evidentiary hearing. He contends that the
word "claim," contained within the same introductory
phrase as "failed to develop," limits the applicability of
S 2254(e)(2) to the substantive allegations of constitutional
error in the state courts, and not the "threshold question of
19
excuse for procedural default." Appellee’s Br. at 54. This is
a reasonable argument, though the term "claim" is not
defined in AEDPA. Lacking any more specific guidance from
Congress, "[w]e give the words of a statute their ‘ordinary,
contemporary, common meaning.’ " Williams , 529 U.S. at
431 (citing Walters v. Metro. Ed. Enters., Inc. , 519 U.S. 202,
207 (1997) (citation omitted)). Black’s Law Dictionary
defines "claim" as follows: "To demand as one’s own or as
one’s right; to assert; to urge; to insist. A cause of action.
Means by or through which a claimant obtains possession
or enjoyment of privilege or thing. Demand for money or
property as of right, e.g. insurance claim." Black’s Law
Dictionary 247 (6th ed. 1990). Thus, while the definition
begins with general terms, its latter half focuses on "claim"
as shorthand for a "cause of action" or "means" of obtaining
possession or enjoyment of some privilege. In the context of
habeas corpus, that privilege would be freedom from
incarceration, and a "claim" would be the substantive
argument entitling the petitioner to that relief.
The Commonwealth is unable to demonstrate anywhere
in AEDPA that the term "claim" was intended by Congress
to encompass excuses to procedural default. In fact,
AEDPA’s use of the word "claim" uniformly comports with
Cristin’s more limited definition of a "cause of action" or
"means by or through which a claimant obtains . ..
enjoyment of [a] privilege." Black’s Law Dictionary 247. For
example, the term "claim" is used in S 2254(d), also added
by AEDPA, in the following sentence. "An application for a
writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless . . . ." 28
U.S.C. S 2254(d) (emphasis added). By stating that an
"application for a writ of habeas corpus" can be granted
"with respect to any claim," the sentence clearly implies
that Congress used the term "claim" as a substantive
request for the writ of habeas corpus. This is the same
definition of the term "claim" used in the pleading
requirements of Federal Rule of Civil Procedure 8(a), which
states that pleadings must contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed. R. Civ. P. 8(a). Indeed, the use of the term
20
"claim" in Rule 8 was a substitute for the term "cause of
action," and was defined by one court as "the aggregate of

-- 16 of 22 --

operative facts which give rise to a right enforceable in the
courts." Original Ballet Russe, Ltd. v. Ballet Theatre, Inc.,
133 F.2d 187, 189 (2d Cir. 1943) ("For the traditional and
hydraheaded phrase ‘cause of action’ the Federal Rules of
Civil Procedure have substituted the word ‘claim.’ ").15
In conclusion, the Commonwealth has presented no
indicia that Congress intended S 2254(e)(2)’s restrictions on
evidentiary hearings to apply, in addition to hearings on the
merits, to hearings on excuses to procedural default.
Because the procedural default doctrine and the exceptions
to its strictures are federal doctrines and have little bearing
on state court processes, we cannot conceive of any state
court process that would require a petitioner to develop in
state court the facts excusing procedural default for
_________________________________________________________________
15. Moreover, there is good evidence from the genesis of S 2254(e)(2) that
Congress intended the term "claim" to encompass only substantive
requests for habeas corpus, which is precisely how that term was
previously used by the Supreme Court in Keeney . When Congress acts
to codify Supreme Court precedent, as it did in enacting S 2254(e)(2),
Williams, 529 U.S. at 434, courts can presume that it uses terms in the
same fashion as the Court. Thus, in Williams the Court held that
Congress in S 2254(e)(2) used the word "failed" in the same sense in
which it used that term in Keeney. Id.
Similarly, we can assume that Congress used the term"claim" in
S 2254(e)(2) in the same manner that the Court used the term in Keeney.
Examining Keeney, it is evident that the Court used the term only as
Cristin suggests -- an entitlement to relief on the merits -- and not as
a more general term including the showing of cause and prejudice or
miscarriage of justice. See, e.g., Keeney, 504 U.S. at 4 ("the critical facts
relevant to his federal claim"), 4 n.1 ("respondent’s claim that the plea
form and plea proceeding were not adequately translated"), 8 ("failing to
properly assert a federal claim in state court and failing in state court to
properly develop such a claim"), 9 ("full factual development of a claim"),
10 ("Just as the State must afford the petitioner a full and fair hearing
on his federal claim, so must the petitioner afford the State a full and
fair opportunity to address and resolve the claim on the merits."). In that
entire decision, applying the cause and prejudice and miscarriage of
justice standards to the failure to develop a factual record for habeas
relief, the Court never once uses the term "claim" to refer to a showing
of cause and prejudice or miscarriage of justice.
21
purposes of federal habeas relief. It follows that we cannot
fault a petitioner for his or her failure to do so. Moreover,
the Commonwealth’s argument that the term "claim"
includes procedural default hearings is unsupported and at
odds with the traditional understanding of that term, as
used by both Congress and the Supreme Court. Thus,
S 2254(e)(2)’s restrictions do not apply to hearings on
procedural default, and we find that the District Court
acted within its discretion in ordering such a hearing.
IV. EXCUSING CRISTIN’S FAILURE TO APPEAL

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Having concluded that the District Court did not err by
granting Cristin an evidentiary hearing to establish an
excuse for his procedural defaults, we inquire whether the
Court properly concluded that Cristin had cause and
prejudice to excuse his two procedural defaults. We will
also address whether Cristin can establish a miscarriage of
justice as an alternative basis for the Court’s excuse of his
default. Because we conclude that Cristin cannot establish
either cause and prejudice or a miscarriage of justice to
excuse his failure to appeal the adverse result of his PCRA
proceedings, we will reverse the grant of habeas corpus
without reaching the more troubling question of Cristin’s
failure to take a direct appeal from his in absentia
conviction.
A. Cause and Prejudice
In finding cause and prejudice to excuse Cristin’s two
failures to take appeals, the District Court accepted the
factual findings and legal conclusions of the Magistrate
Judge. Despite the Court’s earlier suggestion that there
might be a miscarriage of justice, the Magistrate Judge
instead focused her efforts on whether Cristin could
establish cause and prejudice. More particularly, the
Magistrate Judge’s factual findings addressed Cristin’s
failure to take a direct appeal and the curious history of
Cristin’s representation and the adequacy of that counsel.
The Magistrate Judge commented only sparsely on Cristin’s
justification for not appealing the rejection of his PCRA
petition. In fact, the Magistrate Judge made only two
22
findings of fact with respect to that petition. She found that
Cristin was represented by Norman Perlberger in the PCRA
proceeding and that a scheduled "evidentiary hearing never
took place, apparently because ‘counsel decided to rest on
the record after submitting additional briefs.’ " App. at 26
(citing Commonwealth v. Cristin, No. 0191 (Pa. Ct. Comm.
Pleas June 12, 1997) (Brinkley, J.)). Furthermore,"[d]uring
the same time, Norman Perlberger was corresponding with
petitioner in an effort to be paid fees which he believed
petitioner owed to him." Id. Other than these limited
findings, there was no other evidence to explain Cristin’s
failure to appeal the resolution of his PCRA proceedings.
Nevertheless, the Magistrate Judge concluded that Cristin
"did not knowingly and voluntarily waive his right to appeal
. . . the decision . . . on his PCRA petition," App. at 31, and
this excused his procedural default. The District Court
accepted this conclusion without comment.
The Magistrate Judge erred in concluding that Cristin’s
procedural default should be excused, and the District
Court erred in accepting that conclusion. Even if Cristin’s
failure to appeal the PCRA ruling was unknowing, that fact
is irrelevant to establishing cause. The Supreme Court has
held that "cause" will "ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s

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procedural rule." Murray v. Carrier, 477 U.S. 478, 488
(1986). Examples of "cause" that are "external to the
defense" include interference by the state with the conduct
of a defense or the previous unavailability of the factual or
legal basis of a claim. Id. Generally, "cause" cannot be
based on the mere inadvertence of the petitioner or
petitioner’s counsel to take an appeal. "[T]he mere fact that
counsel failed to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it,
does not constitute cause for a procedural default." Id. at
486. Indeed, in Coleman v. Thompson, 501 U.S. 722 (1991),
the Court addressed the very question presented by this
case -- the effect of a litigant’s inadvertent failure to take a
timely appeal in a state collateral proceeding. The Court,
applying Murray v. Carrier, concluded that an "ignorant or
inadvertent procedural default" does not satisfy the cause
element of cause and prejudice. Coleman, 501 U.S. at 752.
23
Thus, it is immaterial whether Cristin unwittingly failed to
appeal the denial of his PCRA petition.
Nor is it relevant that Cristin’s PCRA counsel "was
corresponding with petitioner in an effort to be paid fees."
Even were we to attribute Cristin’s failure to appeal to his
attorney,16 Cristin nonetheless cannot rely on his attorney’s
fault to establish cause. While ineffective assistance of
counsel can be cause for a procedural default, the
attorney’s ineffectiveness must rise to the level of a Sixth
Amendment violation. See Murray, 477 U.S. at 488.
Because Cristin had no Sixth Amendment right to
representation at his PCRA hearing, Pennsylvania v. Finley,
481 U.S. 551 (1987), his counsel’s alleged ineffective
assistance cannot establish cause for Cristin’s procedural
default. Coleman, 501 U.S. at 752.
B. Miscarriage of Justice
While the District Court only suggested the presence of a
miscarriage of justice, Cristin has argued before this Court
that, as an alternative to cause and prejudice, we can find
a miscarriage of justice that would excuse his failure to
appeal the PCRA court’s rejection of his claims. To establish
a miscarriage of justice excusing a procedural default, a
habeas petitioner must "persuade[ ] the district court that,
in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable
doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). The
miscarriage of justice inquiry is thus concerned with
"actual innocence." Sawyer v. Whitley, 505 U.S. 333, 339
(1992).
Cristin has not proffered new evidence that would absolve
him of guilt for the crime of which he was convicted. We
have held that, in certain circumstances, the lack of new
evidence is not necessarily fatal to an argument that a
petitioner is actually innocent. United States v. Garth, 188
F.3d 99, 110 n.13 (3d Cir. 1999). In Garth, however, we

-- 19 of 22 --

_________________________________________________________________
16. Given the clarity of Perlberger’s correspondence with Cristin, supra at
n.3, we think it unlikely that Cristin’s PCRA counsel could be held
responsible for his failure to appeal.
24
were persuaded that the Supreme Court had reinterpreted
the statute under which the petitioner was convicted to
require more conduct than was allegedly committed. As
such, there was a colorable argument that he was actually
innocent of the crime. In those circumstances, it was not a
question of what new evidence of innocence the petitioner
could present, but whether the evidence currently in the
record was sufficient to convict. Thus, Cristin’s reliance on
Garth to establish that he need not introduce new evidence
of his innocence is unpersuasive.
Lacking new evidence of his innocence, Cristin argues
that he need not demonstrate his actual innocence of the
crime to establish a miscarriage of justice. Instead, he
submits that he is "actually innocent" of the excessively
long sentence that he received--fifteen to thirty years
imprisonment. 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.
See, e.g., Sawyer, 505 U.S. at 339. The basic idea is that
even a person guilty of an underlying crime can be"actually
innocent" of a sentence because the facts presented at
sentencing were erroneous and thus do not support the
particular sentence imposed. Our precedent on this issue,
however, does not support the manner in which Cristin has
divorced actual innocence of the crime from actual
innocence of the sentence. The latter has no application to
this case.
The only support presented by Cristin in support of
finding a miscarriage of justice in his sentence is Sawyer,
505 U.S. at 347, in which the Supreme Court applied the
"actual innocence" analysis to a capital sentencing. In
capital cases, which traditionally bifurcate the hearing of
evidence on guilt from evidence of the aggravating or
mitigating circumstances that might warrant imposition of
the death penalty, the Supreme Court held that a showing
of actual innocence of a requirement for a capital sentence
would excuse procedural default. Id. The Court emphasized
the unique nature of the death penalty, restricting its
holding on actual innocence to "those elements that render
a defendant eligible for the death penalty, and not on
additional mitigating evidence that was prevented from
25
being introduced as a result of a claimed constitutional
error."17 Id.
The courts of appeals have split on the question of

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whether the miscarriage of justice rationale can extend to
non-capital sentencings. Compare United States v.
Maybeck, 23 F.3d 888, 892-94 (4th Cir. 1994) (applying the
actual innocence analysis to factual elements of a career
offender determination); Mills v. Jordan, 979 F.2d 1273,
1278-79 (7th Cir. 1992) (applying actual innocence to the
elements of a habitual offender sentencing procedure), with
Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.
1999) (en banc) (limiting the "actual innocence of the
sentence" rationale to capital cases); United States v.
Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (same).
Indeed, the issue is not as simple as whether to apply
Sawyer in a non-capital context; the courts of appeals have
debated the types of sentences of which a petitioner can be
innocent and whether a claim of innocence of the sentence
is actually a disguised attack on the conviction’s validity.
For example, in the Fourth Circuit, a holding extending
Sawyer to non-capital elements of a career offender
determination, Maybeck, 23 F.3d at 892-94, was limited by
a later panel to "the context of eligibility for application of
a career offender or other habitual offender guideline
provision" and was held not to extend to non-factual
challenges to the application of sentencing enhancements.
United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.
1999). Similarly, in the Eighth Circuit, an early case
applying Sawyer to non-capital sentencings, Pilchak v.
Camper, 935 F.2d 145, 148 (8th Cir. 1991), was effectively
overruled by that Court, en banc, because"Sawyer, in
_________________________________________________________________
17. This Court has noted that the "Supreme Court has not decided
whether the actual innocence test is applicable in a noncapital case
when there is evidence that defendant committed the crime but argues
that he or she was responsible for a lesser degree of guilt." Glass v.
Vaughn, 65 F.3d 13, 16 (3d Cir. 1995). While our consideration in Glass
centered on whether the petitioner was actually innocent of first degree
murder and guilty of third degree, an arguable analogy to being innocent
of the sentence, we did not reach the issue. Id. Instead, we assumed
arguendo that actual innocence could extend to the degree of guilt and
went on to find petitioner’s evidence in that respect lacking. Id. at 17.
26
terms, applies only to the sentencing phase of death cases"
and the "quarrel [in that case was] not really with his
sentence, it [was] with the fact that he was convicted."
Embrey, 131 F.3d at 740.
We need not venture into the thicket of whether Sawyer’s
rationale applies with equal validity to non-capital
sentencing, because the "actual innocence" rationale
remains firmly rooted in the testing of allegedly erroneous
factual determinations, whether it be factual
determinations of guilt at the conviction stage or factual
determinations underlying eligibility for the death penalty.
See Sawyer, 505 U.S. at 339; Bousley, 523 U.S. at 623.
Those courts that have extended Sawyer’s holding on the
"actual innocence" of a sentence have uniformly done so in
the context of testing the factual findings on which a

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particular non-capital sentence is based, such as prior
convictions. See Mikalajunas, 186 F.3d at 495 (limiting a
petitioner’s argument of actual innocence of a sentence to
"eligibility for application of career offender guideline
provision"); Mills, 979 F.2d at 1278-79 ("In both [Sawyer
and Mills] the sentencing decision resembled a factual
determination of guilt or innocence.").
Cristin’s argument that he is actually innocent of his
sentence is thus not applicable to this case. We have no
basis for concluding that some factual finding at sentencing
was erroneous.18 Cristin asserts that he is actually innocent
of the sentence, but his real argument, which we have
already rejected, is that he is actually innocent of the crime.
Cristin therefore cannot establish a miscarriage of justice to
excuse his failure to appeal the rejection of his PCRA
claims.
_________________________________________________________________
18. Indeed, the error in Cristin’s position is revealed if it proceeds to its
logical end. If we were to adopt Cristin’s argument that Sawyer should
apply to errors in non-capital sentencings and assume that he has set
forth sufficient facts to establish his actual innocence of that sentence,
at most Cristin would be entitled to address arguments waived at his
sentencing. Because Cristin’s claims of error in this habeas proceeding
are directed at the conduct of the in absentia trial, he would be unable
to seek relief for those claims.
27
V. CONCLUSION
Given our skeptical view of Cristin’s trial, it is with
reluctance that we find that he is not entitled to relief in
habeas corpus because he has procedurally defaulted his
claims in state court. The District Court did not err in
granting Cristin an evidentiary hearing to develop factual
bases establishing cause for his procedural defaults, and
indeed we applaud the conscientiousness employed by the
Court in this respect. Nonetheless, it is plain that Cristin
cannot establish the necessary cause for his failure to take
a direct appeal from his conviction to the Superior Court or
his failure to appeal the rejection of his PCRA petition. Nor
can Cristin establish that a miscarriage of justice would
result from our failure to consider his claim.
* * * * *
For the foregoing reasons, we reverse the District Court’s
grant of the writ of habeas corpus.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
28

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