Jeffrey Marsalis v. Pennsylvania Department of Cor ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-3267
_______________
JEFFREY J. MARSALIS,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:16-cv-03098)
District Judge: Honorable Wendy Beetlestone
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 22, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges
(Filed: June 16, 2022)
Michael Wiseman
WISEMAN & SCHWARTZ
718 Arch Street, Suite 702
Philadelphia, PA 19106
Counsel for Appellant
Shoshana D. Silverstein
Matthew Stiegler
PHILADELPHIA COUNTY OFFICE OF DISTRICT ATTORNEY
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Criminal convictions must become final. Finality gives vic-
tims closure. It also shifts our focus from rehashing guilt to
punishing the guilty. To ensure finality, prisoners must file fed-
eral habeas petitions within a year of their state convictions and
appeals. Yet Jeffrey Marsalis filed his ineffective-assistance
claim ten months late. Plus, he failed to assert it on state habeas
first. Even if we looked past these mistakes, his conviction
would stand; the jury would have convicted him even if his
lawyer had been adequate. So we will affirm the District
Court’s dismissal.
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I. THE FAUX PHYSICIAN, SERIAL SEX PREDATOR
Marsalis seduced women with lies. In reality, he is a nurs-
ing-school dropout. But on dating websites, he was “Dr. Jeff,”
a high-flying physician at the University of Pennsylvania who
doubled as a NASA astronaut. App. 129. He used that persona
to lure women into meeting him for drinks or dinner.
An unsuspecting woman fell for Marsalis’s ruse. He
drugged her drink, then offered to let her recover at his apart-
ment. As the woman blacked out, he sexually assaulted her.
She later awoke, remembering little but feeling disoriented
from the drug and sore from the assault. Marsalis told her that
he had had a nice time.
She was not the only one. Nine other women accused Mar-
salis of raping them, each telling a version of that same story.
When Marsalis was eventually tried in Pennsylvania state
court, he faced a heap of evidence. Seven victims testified
against him. An FBI chemist, Dr. Marc LeBeau, testified that
the amount of alcohol the women allegedly drank did “not
match” the blackouts they experienced. App. 296. Though Dr.
LeBeau could not say what had caused their blackouts, he sug-
gested that a central nervous system depressant might have
played a role. And police found one such drug, Benadryl, at
Marsalis’s apartment.
Yet the defense presented Marsalis as a playboy who “might
have took [sic] it a little further … than you might expect.”
Gov’t Br. 20 (quoting Marsalis’s closing argument). That strat-
egy worked: the jury acquitted him of rape, convicting him
only of two sexual assaults. At sentencing, the judge found that
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he was a sexually violent predator and sentenced him to the
maximum: up to twenty-one years in prison.
On state habeas (technically, PCRA), Marsalis argued that
his trial counsel was ineffective for failing to present an alibi
defense and investigate a victim’s medical condition. Marsalis
started with a lawyer but eventually chose to proceed without
one. The court dismissed his petition, and the Superior Court
affirmed.
Next, Marsalis filed this federal habeas petition, arguing that
trial counsel should have objected to Dr. LeBeau’s expert
testimony. The government responded that this claim was un-
timely. Without addressing the timeliness argument, the mag-
istrate judge recommended dismissing the ineffective-counsel
claim because Marsalis had not raised it during state habeas.
The District Court adopted that recommendation, denying his
petition.
Marsalis now appeals to us. We review de novo. Dennis v.
Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 280 (3d Cir. 2016) (en
banc).
II. MARSALIS’S INEFFECTIVE-ASSISTANCE CLAIM
WAS UNTIMELY
The District Court did not reach the government’s timeliness
argument. But we may because the record is clear: Marsalis’s
federal habeas challenge came too late. Hughes v. Long, 242
F.3d 121, 122 n.1 (3d Cir. 2001) (we can affirm on any ground
supported by the record).
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A. Marsalis amended his federal habeas petition
too late
Under the Antiterrorism and Effective Death Penalty Act,
Marsalis had to file his federal habeas petition within one year
of when his state conviction became final. 28 U.S.C.
§ 2244(d)(1), (1)(A). The Superior Court affirmed his convic-
tion on July 1, 2009, and he did not seek further review, so his
clock started running on July 31 (after the time to appeal had
expired). Pa. R. App. P. 903. He filed his state-habeas petition
with four days to spare. § 2244(d)(2). But his initial petition did
not raise his trial counsel’s ineffectiveness for failing to chal-
lenge Dr. LeBeau. And he did not add that claim until ten
months later.
Marsalis’s ten-month delay is fatal. We gauge timeliness not
for the petition as a whole, but for each claim in it. Munchinski
v. Wilson, 694 F.3d 308, 327 (3d Cir. 2012). A petitioner can-
not stop the clock on all his claims by filing a bare-bones peti-
tion and then larding it later. Id. So while his first federal ha-
beas petition was timely, his later claim of ineffective assis-
tance was not.
B. The government did enough to preserve its
timeliness argument
Marsalis challenges none of that. Instead, he says the gov-
ernment forfeited its timeliness argument. (It did not). Recall
that the magistrate judge did not address timeliness, but recom-
mended ruling for the government on other grounds. Having
won, the government said nothing further about timeliness
when the District Court considered the magistrate judge’s
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recommendation. Now Marsalis says that to preserve its time-
liness argument, the government should have objected to the
favorable recommendation.
Not so. True, a losing party may forfeit an argument by not
objecting to a magistrate judge’s recommendation rejecting it.
See, e.g., EEOC v. City of Long Branch, 866 F.3d 93, 99–100
(3d Cir. 2017). But it makes little sense to extend that rule to
require a prevailing party to object to a report in its favor to
preserve alternative grounds for winning. A diligent magistrate
judge will often recommend ruling for one side based on an
issue that cuts to the heart of the case, bypassing backup argu-
ments to focus the district court on the key point. But Mar-
salis’s rule would require winning parties and judges to address
all arguments, not just dispositive ones. That rule is wasteful.
So we join our sister circuits in holding that a prevailing
party need not object to a magistrate judge’s report and recom-
mendation to preserve arguments that the magistrate judge did
not address. See Gerth v. Warden, Allen Oakwood Corr. Inst.,
938 F.3d 821, 827 (6th Cir. 2019); United States v. Street, 917
F.3d 586, 598–99 (7th Cir. 2019); United States v. Willis, 431
F.3d 709, 713 n.4 (9th Cir. 2005); Yeatts v. Angelone, 166 F.3d
255, 263 n.5 (4th Cir. 1999).
III. IN ANY EVENT, THE ALLEGED ERROR
MADE NO DIFFERENCE
Though it did not address timeliness, the District Court dis-
missed Marsalis’s federal habeas petition for a different reason.
It rightly held that he had procedurally defaulted his ineffec-
tive-assistance claim by failing to raise it on state habeas. And
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even if we look past the default, trial counsel’s performance
did not prejudice him.
Marsalis failed to raise his claim on state habeas. We usually
do not review such unexhausted claims. True, we may over-
look such a procedural default if state habeas counsel was him-
self ineffective in not challenging the trial lawyer’s effective-
ness and that claim “has some merit.” Martinez v. Ryan, 566
U.S. 1, 14 (2012). We may also overlook a default “where the
state courts did not appoint counsel” on state habeas, forcing a
prisoner to represent himself. Id. Yet neither the Supreme
Court nor this Court has decided whether we should excuse a
default when a state appoints habeas counsel but the prisoner
then fires him and proceeds without a lawyer. That important
question merits attention in an appropriate case, but not here.
Yet even if Martinez applies, Marsalis’s ineffective-assis-
tance claim fails because he cannot prove prejudice. Strickland
v. Washington, 466 U.S. 668, 694–95 (1984). Setting aside the
expert’s testimony, his conviction was supported by the testi-
mony of not one, not two, not six, but seven victims. One vic-
tim testified that after just two beers, she soon felt “disoriented,
very passive, very uncomfortable.” App. 141. When he took
her back to his apartment and tried to reach up her skirt, she
“told him that [she] was uncomfortable with that and [she]
asked him to stop.” App. 151. Then she “lost memory,” and
“[t]he next thing [she] remember[ed] [was] waking up in his
bed” with him “on top of [her] having sex.” App. 153–55. She
“never consented to having sex with him” and “[h]e was forc-
ing himself on to [her], and it physically hurt.” App. 156–57.
She “remember[s] telling him to stop” and that “he was hurting
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[her].” App. 157. Her testimony was corroborated. Medical
records showed that she visited her doctor to discuss the as-
sault. And her ex-boyfriend testified that she soon told him
about the assault too.
To this, Dr. LeBeau’s testimony added little. He explained
that the amount that the women drank would not have caused
them to black out. But the jurors almost certainly would have
reached that conclusion even without his testimony. Deciding
whether a few drinks will likely intoxicate someone is well
within a lay juror’s experience. Indeed, the jury instructions
stressed that the victims’ testimony, “standing alone … [was]
sufficient proof … [of] guilt[ ],” if believed. App. 85. Plus, Dr.
LeBeau never said that Marsalis’s drugs had caused the victims
to black out. Rather, he said their symptoms were like those of
Benadryl, a widely available drug. Such weak testimony prob-
ably did not move the needle.
Thus, even without Dr. LeBeau’s testimony, there is not a
“reasonable probability” that the jury would have had a “rea-
sonable doubt” about Marsalis’s guilt. Strickland, 466 U.S. at
695. Indeed, we have repeatedly held that challenged testi-
mony did not prejudice a defendant whose conviction rested on
plenty of other evidence. See, e.g., Preston v. Superintendent
Graterford SCI, 902 F.3d 365, 382 (3d Cir. 2018); Buehl v.
Vaughn, 166 F.3d 163, 176 (3d Cir. 1999).
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*****
Marsalis’s federal petition was untimely. And he failed to
preserve his ineffective-assistance claim. Even if we look past
both bars, he cannot prove prejudice, so we will affirm.
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