PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

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No. 20-3267

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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

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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)
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Michael Wiseman

WISEMAN & SCHWARTZ

718 Arch Street, Suite 702

Philadelphia, PA 19106

Counsel for Appellant 

Jennifer O. Andress

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 victims closure. It also shifts our focus from rehashing guilt to 

punishing the guilty. To ensure finality, prisoners must file federal 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 nursing-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 apartment. 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 Marsalis 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 suggested 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 strategy 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 untimely. Without addressing the timeliness argument, the magistrate 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 conviction 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 challenge 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 cannot stop the clock on all his claims by filing a bare-bones petition and then larding it later. Id. So while his first federal habeas petition was timely, his later claim of ineffective assistance was not.

B. The government did enough to preserve its 

timeliness argument

Marsalis challenges none of that. Instead, he says the government forfeited its timeliness argument. (It did not). Recall 

that the magistrate judge did not address timeliness, but recommended 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 timeliness 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 arguments to focus the district court on the key point. But Marsalis’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 recommendation 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 dismissed Marsalis’s federal habeas petition for a different reason. 

It rightly held that he had procedurally defaulted his ineffective-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 overlook such a procedural default if state habeas counsel was himself ineffective in not challenging the trial lawyer’s effectiveness 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-assistance 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 testimony of not one, not two, not six, but seven victims. One victim 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 forcing 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 assault. 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 probably 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 “reasonable doubt” about Marsalis’s guilt. Strickland, 466 U.S. at 

695. Indeed, we have repeatedly held that challenged testimony 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.