Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-12-2025 
Cesar Almendares v. Attorney General United States of America 
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Recommended Citation 
"Cesar Almendares v. Attorney General United States of America" (2025). 2025 Decisions. 198. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/198 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-1772 
_______________ 
 
CESAR OBED ALMENDARES, 
  Petitioner 
 
v. 
 
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA 
  
_______________ 
 
On Petition for Review of a Final Order of the 
Board of Immigration Appeals 
(No. A094-777-946) 
Immigration Judge: Mirlande Tadal 
 
_______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a)  
January 30, 2025 
 
Before: KRAUSE, PORTER, and ROTH, Circuit Judges. 
 
(Filed: March 12, 2025) 
_______________ 
 
OPINION 
_______________ 
 
  
 
 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
 
2 
 
PORTER, Circuit Judge. 
Cesar Obed Almendares, a citizen of Honduras, petitions for review of a Board of 
Immigration Appeals (BIA) order affirming an Immigration Judge’s denial of his motion 
to reopen removal proceedings. For the reasons below, we will deny the petition in part 
and dismiss the petition in part.  
I 
 Almendares entered the United States unlawfully in 1999 as a minor. In March 
2020, he applied for asylum, withholding of removal, and protection under the 
Convention Against Torture. In July of that same year, the Immigration Judge denied 
Almendares’s application and ordered he be removed to Honduras. Four months later, the 
BIA affirmed the Immigration Judge’s order.  
In February 2024, through new counsel, Almendares moved to reopen his BIA 
proceeding. The BIA held, and neither party disputed, that Almendares’s motion to 
reopen was untimely since it was filed well after the ninety-day window to do so. See 8 
U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The BIA understood Almendares to 
be arguing that the agency should have equitably tolled the filing deadline based on 
ineffective assistance of counsel or exercised its authority to sua sponte reopen the case.  
The BIA rejected Almendares’s arguments for reopening. First, it held that 
Almendares had not complied with the procedural requirements for an ineffective 
assistance of counsel claim imposed by Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 
1988). Moreover, it ruled that Almendares had not sought to redress his attorney’s 
alleged errors, or pursue cancellation of removal, with the requisite diligence. Finally, the 
 
3 
 
BIA declined to exercise its sua sponte authority to reopen. Almendares filed a timely 
petition for review to this Court.1  
II 
A2 
The BIA understood Almendares to be arguing for equitable tolling based on 
ineffective assistance of counsel. Almendares now claims that his argument for equitable 
tolling is “not based on ineffective assistance of counsel but on the fundamental error 
made in his case, not only by [his] former counsel but also by the Immigration Judge and 
the [Department of Homeland Security’s] Assistant Chief Counsel.” Opening Br. at 5. 
Almendares claims the agency abused its discretion by “ignor[ing] substantial evidence 
demonstrating the fundamental unfairness” in his proceedings before the Immigration 
Judge that violated his due process rights. Id. at 7.  
The alleged errors of the Immigration Judge or the Assistant Chief Counsel in 
Almendares’s immigration proceeding are not relevant to our consideration of equitable 
tolling. For equitable tolling purposes, the relevant extraordinary circumstances are those 
 
1 The BIA had jurisdiction over Almendares’s motion to reopen under 8 C.F.R. § 1003.2. 
We have jurisdiction over Almendares’s petition for review under 8 U.S.C. § 1252(a). 
 
2 Motions to reopen are disfavored and granted only under compelling circumstances. 
Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021). We review the BIA’s denial of a 
motion to reopen for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 
2002). The BIA’s decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 
F.3d 396, 409 (3d Cir. 2003) (quotation marks omitted), and it “will not be disturbed 
unless [it is] found to be arbitrary, irrational, or contrary to law,” Guo v. Ashcroft, 386 
F.3d 556, 562 (3d Cir. 2004) (quotation marks omitted).  
 
 
4 
 
that would have prevented Almendares from filing his motion to reopen sooner. See Pace 
v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling 
bears the burden of establishing two elements: (1) that he has been pursuing his rights 
diligently, and (2) that some extraordinary circumstance stood in his way.”).  
To be sure, to the extent that Almendares maintains that he received ineffective 
assistance of counsel, such an argument “can serve as a basis for equitable tolling if 
substantiated and accompanied by a showing of due diligence.” Alzaarir v. Att’y Gen., 
639 F.3d 86, 90 (3d Cir. 2011). But here, the BIA did not abuse its discretion in declining 
to apply equitable tolling on the basis of ineffective assistance of counsel. For one, we 
see no error in the BIA’s determination that Almendares failed to meet the threshold 
procedural requirements imposed by Matter of Lozada.3 Nor did the BIA err in 
determining that Almendares failed to show the requisite due diligence in pursuing his 
claim through his eventual filing in February 2024—almost four years after his allegedly 
flawed immigration proceeding, and nearly three years after retaining new counsel to 
 
3 In Lozada, the BIA imposed three threshold requirements for all motions to reopen 
premised on an ineffectiveness claim: (1) the motion “should be supported by an affidavit 
of the allegedly aggrieved [noncitizen] attesting to the relevant facts”; (2) “former 
counsel must be informed of the allegations and allowed the opportunity to respond,” and 
any response, or “failure or refusal to respond, should be submitted with the motion”; and 
(3) “the motion should reflect whether a complaint has been filed with appropriate 
disciplinary authorities regarding such representation, and if not, why not.” 19 I. & N. 
Dec. 637, 639 (B.I.A. 1988). The BIA found that Almendares failed to comply with all of 
these requirements.  
 
 
5 
 
pursue his claims. See Alzaarir, 639 F.3d at 90 (“Due diligence must be exercised over 
the entire period for which tolling is desired.” (citation omitted)).  
B 
Almendares also challenges the BIA’s refusal to reopen the matter sua sponte. 
Because such decisions are discretionary and “functionally unreviewable,” we generally 
lack jurisdiction to review them. Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 
2017). We have jurisdiction where the BIA relied on an incorrect legal premise or 
departed from a settled practice. Id. at 651–52.  
Almendares fails to raise either exception to the jurisdictional bar that applies to 
challenges to an agency’s denial of a motion to reopen sua sponte. The BIA did not rely 
on an incorrect legal premise and did not depart from a settled course of adjudication in 
its handling of Almendares’s case. Therefore, we lack jurisdiction and must leave the 
BIA’s decision undisturbed.  
* * * 
Accordingly, we will dismiss the petition with respect to the motion for sua sponte 
reopening and deny the petition in all other respects.  


English

Cesar Almendares v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-14-2025 
Katie Sczesny v. Philip Murphy 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Katie Sczesny v. Philip Murphy" (2025). 2025 Decisions. 206. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/206 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
No. 24-1676 
____________ 
KATIE SCZESNY; JAMIE RUMFIELD; DEBRA HAGEN; 
MARIETTE VITTI, 
Appellants 
v. 
PHILIP MURPHY, in his official and personal capacity;  
STATE OF NEW JERSEY 
____________ 
On Appeal from the United States District Court 
for the District Court of New Jersey 
(D.C. Civil No. 3:22-cv-02314) 
 
ORDER AMENDING OPINION 
 
The Honorable Peter J. Phipps filed a dissenting opinion in this case.  The dissenting 
opinion was omitted at the time the Clerk entered the order on the docket.  An amended 
opinion which includes the dissenting opinion will be entered on the docket. 
 
For the Court,  
         
 
     
PATRICIA S. DODSZUWEIT,  
Clerk 
 
Date: March 14, 2025 
Tmm/cc: All Counsel of Record 
 


Katie Sczesny v. Philip Murphy

Bernstein, Gaia

Gatekeeping Screen Time: Configuring the Regulation of Addictive Technologies and Kids\u27 Privacy Rights

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies

Santos Rutschman, Ana

From Myriad to Moderna: The Modern (Bio)Pharmaceutical Company

Hubbard, William

Drivers of Effective Laws for Automated Vehicles

Randy Washington v. Charles Ellis

USA v. Carolyn Jackson

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-27-2025 
Kenneth Talley v. Judith Horn 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Kenneth Talley v. Judith Horn" (2025). 2025 Decisions. 238. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/238 
This March is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
BLD-095        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2358 
___________ 
 
KENNETH R. TALLEY; JANICE A. TALLEY; KRISTINA KAREN TALLEY, 
      Appellants 
 
v. 
 
JUDITH C. HORN; DARREN W. HORN, SR. 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of Delaware 
(D.C. Civil Action No. 1:23-cv-00982) 
District Judge:  Honorable Maryellen Noreika 
____________________________________ 
 
Submitted on Appellants’ Motion for Summary Action and Appellees’ Motion to Dismiss 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6,  
or for Possible Dismissal under 28 U.S.C. § 1915(e)(2)  
 
March 6, 2025 
Before:  SHWARTZ, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: March 27, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 Appellants Kenneth and Janice Talley,1 husband and wife, and their daughter 
Kristina Talley appeal from an order of the District Court dismissing their complaint for 
lack of subject matter jurisdiction.  Appellants have filed a motion for summary action, 
and Appellees’ have filed a motion to dismiss.  Because there is no substantial question 
presented, we will summarily vacate the District Court’s order and remand the matter to 
the District Court for further proceedings.  See Third Circuit LAR 27.4 and I.O.P. 10.6.  
 Kenneth and Janice Talley have spent years in state and federal courts litigating 
against their daughter Judith Horn and her husband Darren Horn, Sr. (“the Horns”), and 
seeking to establish a right or interest in a Milton, Delaware property owned by the 
Horns.  Two of those proceedings are relevant here.  After a trial in the Delaware Court 
of Chancery, a Master issued a report, which was later approved and adopted by the 
Chancellor, finding that the Talleys had no interest in the property.  See Talley v. Horn, 
No. 53, 2023, 2023 WL 5218142, at *1 (Del. Aug. 14, 2023).  Subsequently, the Horns 
filed an ejectment action, which the Superior Court granted.  See id. at *2-3 (affirming 
the Superior Court’s ejectment order). 
The Appellants brought this action against the Horns in Delaware District Court 
raising five claims, including federal claims pursuant to 42 U.S.C. § 1983 for violations 
of their First and Fifth Amendment rights, as well as civil conspiracy, and state law 
 
1 Kenneth and Kristina Talley have filed a motion for substitution, indicating that Janice 
Talley is now deceased, and requesting to substitute Kristina, as Janice’s estate 
representative, for the deceased.  In light of our disposition, and because there is no 
probate proceeding pending, we deny the motion to substitute without prejudice to 
refiling the motion in the District Court. 
 
3 
 
claims for fraud and misrepresentation, elder abuse, and intentional infliction of 
emotional distress.  The District Court determined that Appellants were attempting to 
undo the Chancery Court judgment and the ejectment order, and, therefore, that the 
claims were barred by the Rooker-Feldman2 doctrine.  The District Court dismissed the 
complaint for want of jurisdiction, and this appeal ensued.   
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.  We exercise 
plenary review over the District Court's application of the Rooker-Feldman doctrine.  See 
Parkview Assocs. P’ship v. City of Lebanon, 225 F.3d 321, 323-24 (3d Cir. 2000).  We 
may affirm the judgment on any grounds supported by the record, including those not 
reached by the District Court.  See OSS Nokalva, Inc. v. Eur. Space Agency, 617 F.3d 
756, 761 (3d Cir. 2010).  
The Rooker-Feldman doctrine precludes federal consideration of “cases brought 
by state-court losers complaining of injuries caused by state-court judgments rendered 
before the district court proceedings commenced and inviting district court review and 
rejection of those judgments.”  Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 
280, 284 (2005).  It is a narrow doctrine, limited to cases where the complained-of injury 
stems directly from the state court’s proceedings.  See Great W. Mining & Mineral Co. v. 
Fox Rothschild LLP, 615 F.3d 159, 167 (3d Cir. 2010).  We conclude that it does not 
apply here. 
 
2 See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust Co., 
263 U.S. 413 (1923).  
 
 
4 
 
In the introduction to their complaint, Appellants maintained that they brought the 
action “to challenge the illegal and unlawful orders administered by the state court.”  
ECF No. 1 at 4 (emphasis in original).  And in stating the “Facts Pertaining to the Case,” 
Appellants alleged that the Court of Chancery denied Kenneth’s right to due process, and 
that the state courts “have never allowed crucial evidence” and “ignored the civil rules of 
procedure.”  Id. at 9.  But the actual claims set forth in the complaint are for injuries 
stemming from the Horn’s actions, not from any state court proceeding.  For example, the 
§ 1983 claims are based on “[t]he conduct of the defendants” in “depriving Ken and 
Janice Talley of their property” and “conspiring in the schemed plan for ejectment.”  Id. 
at 14-15.  Because the source of the injury sought to be redressed is not the state court 
judgment, the District Court erred in dismissing the complaint as barred by Rooker-
Feldman.   
Because of its disposition, the District Court did not consider whether it otherwise 
had jurisdiction to entertain the claims.  The District Court had jurisdiction over the 
federal claims brought pursuant to § 1983 for violations of the First and Fifth 
Amendments, and for civil conspiracy.  See 28 U.S.C. § 1331.  However, the claims are 
subject to dismissal because the Horns are not state actors, nor is it alleged that they 
conspired with state actors.  See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 
49-50 (1999) ("To state a claim for relief in an action brought under § 1983, respondents 
must establish that they were deprived of a right secured by the Constitution or laws of 
the United States, and that the alleged deprivation was committed under color of state 
law."); see also Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998) (noting that to 
 
5 
 
plausibly allege a § 1983 civil conspiracy claim the plaintiffs must allege that the private-
actor defendants “willfully participate[d] in a joint conspiracy with state officials to 
deprive [them] of a constitutional right”).  We will therefore affirm the dismissal of the 
§ 1983 claims.   
It also appears that the District Court may have diversity jurisdiction to consider 
the remaining state law claims, see 28 U.S.C. § 1332.  We will vacate the judgment to the 
extent that it dismissed the state law claims, and remand for the District Court to 
determine in the first instance whether diversity jurisdiction exists, and, if so, whether the 
state law claims have merit.3  
Based on the foregoing, the appeal fails to present a substantial question.  We will 
therefore deny Appellees’ motion to dismiss, grant Appellants’ motion for summary 
action,4 affirm in part and vacate in part the District Court’s judgment, and remand for 
further proceedings consistent with this opinion.5 
 
3 We also note that Appellees moved to dismiss the complaint in the District Court on the 
ground that they were not timely served with the complaint.  See Fed. R. Civ. P. 12(b)(5).  
They did not press that issue on appeal, so we leave it to the District Court to address it 
on remand.   
 
4 The motion for summary action is denied to the extent it also seeks a competency 
evaluation. 
 
5 Appellants’ motion to file transcripts and for an extension of time for transcripts, 
motion to allow electronic transcript evidence, and motion to allow expert evidence are 
denied.  In light of our disposition, we deny Appellees’ request for sanctions, which was 
included in their motion to dismiss.  Appellees may move to renew their motion in the 
District Court. 


Kenneth Talley v. Judith Horn

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-28-2025 
Frank Marsh, Jr. v. Attorney General New Jersey 
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Recommended Citation 
"Frank Marsh, Jr. v. Attorney General New Jersey" (2025). 2025 Decisions. 242. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/242 
This March is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
________________ 
 
No. 23-3123 
________________ 
 
FRANK L. MARSH, JR., 
                                                  Appellant 
 
v. 
 
ATTORNEY GENERAL NEW JERSEY 
_____________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil No. 3:19-cv-15440) 
District Judge: Honorable Georgette Castner 
________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on November 5, 2024 
 
Before: KRAUSE, SCIRICA, and RENDELL, Circuit Judges. 
 
(Filed: March 28, 2025) 
 
________________ 
 
OPINION* 
________________ 
 
 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
 
 
 
2 
 
SCIRICA, Circuit Judge 
 
Frank Marsh appeals the District Court’s order denying his petition for a writ of 
habeas corpus, claiming prosecutorial misconduct, ineffective assistance of counsel, and 
cumulative error.  Because the District Court properly deferred to the state court’s legal 
determination, we will affirm. 
I.1 
Marsh was sentenced to life in prison following his convictions in New Jersey 
state court for first-degree murder for hire, possession of a weapon for an unlawful 
purpose, and unlawful possession of a weapon.  Marsh was convicted for committing the 
murder at the behest of Raymond Troxell, who has been separately convicted.  At trial, 
jurors heard from Kissel, a friend of Marsh and Troxell, who testified that he observed 
arrangements made for the murder for hire, that Marsh confessed to the murder, and that, 
while watching football with Marsh and Troxell, he saw Troxell walking over to Marsh 
with cash in hand.  Jurors also heard testimony from a firearms expert that an American 
Derringer was one of the types of handguns that could have served as the murder weapon  
and that Marsh owned such a firearm, but it was missing and only an empty case for the 
 
1 We will set forth only those facts necessary to our analysis because we write 
principally for those familiar with the factual context and legal history of this case—the 
parties.  We also emphasize a prosecutor’s “chief business is not to achieve victory but to 
establish justice.”  Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963) (citation omitted).  The 
prosecutor acts as a “servant of the law, the twofold aim of which is that guilt shall not 
escape or innocence suffer.”  United States v. Agurs, 427 U.S. 97, 111 (1976) (citation 
omitted).  “He may prosecute with earnestness and vigor . . . . But, while he may strike 
hard blows, he is not at liberty to strike foul ones.”  Berger v. United States, 295 U.S. 78, 
88 (1935).  As we outline the facts, we remind the Middlesex County Prosecutor’s Office 
that these high principles should be top-of-mind for any government attorney.   
 
 
 
3 
 
weapon was found in his home.  Jurors were also presented with cell phone location data 
that seemingly contradicted Marsh’s alibi for the murder. 
Marsh owned several rifles and handguns.  The trial judge issued an instruction 
that discussion of Marsh’s gun ownership may be used only for the “very limited 
purpose” of demonstrating Marsh’s familiarity with firearms and to link the missing 
Derringer to Marsh but not for demonstrating criminal propensity.  RSA 863–65.  
Nevertheless, the prosecutor here frequently referenced Marsh’s gun ownership long after 
the trial judge had determined that testimony was sufficient for this limited purpose and 
instructed the prosecutor to move on.  The prosecutor also placed Marsh’s weapons and 
corresponding ammunition in plain view and “paraded [them] in front of the jury” despite 
the judge’s frequent instructions to “[p]ut the rifle down and move on.”  RSA 1007, 1051.  
The trial court noted that: “[I]t is the Court’s perception that [the prosecutor] did 
absolutely, deliberately disregard my instructions and continue to go back to the area of 
firearms.”  RSA 1346. 
The prosecutor also frequently referenced Marsh’s familiarity using weapons 
while hunting and asked whether animals he hunted “require a lot of patience in order to 
kill.”  RSA 1007.  The trial judge reprimanded counsel, noting “[h]unting has nothing to 
do with this trial” and instructed counsel to move on.  RSA 1008.  The prosecutor ignored 
this instruction and continued to reference Marsh’s affinity for hunting and his lying in 
wait before shooting animals.  On this issue, the trial court lamented that: 
With reference to the hunting.  The Court does not see the use of 
somebody’s hunting as an analogy to laying in wait for somebody. . . . To 
focus, as the State has, on the lying in wait and the number of weapons and 
 
 
 
4 
 
the type of weapons is nothing more in the Court’s mind than a deliberate 
attempt to have the jury focus on a minor portion of the case as opposed to 
the evidence the State has.  And it’s being done deliberately.  
RSA 1049–50. 
In addition to sustaining various objections to the prosecutor’s actions, the trial 
court issued a limiting instruction to the jury prior to the deliberation:   
You may not, may not use this evidence [of firearms] to conclude that 
[defendant] Marsh has a tendency to commit crimes or that just because he 
owns weapons, both long rifles and handguns, he must be guilty or, for that 
matter, is more likely to be guilty . . . . Similarly, the issue of hunting may 
not be used, may not be used to infer that he’s more likely to commit this 
offense.  
The defendant’s [Marsh’s] hunting, the possession of weapons in 
Pennsylvania is and was a lawful activity.  To the extent that he may have 
special skill or training specific to hunting, that may be considered by you. 
RSA 1260.  The jury convicted Marsh of first-degree murder for hire, possession of a 
weapon for an unlawful purpose, and unlawful possession of a weapon.   
Marsh appealed to the New Jersey Superior Court, Appellate Division, challenging 
the references to Marsh’s gun ownership and arguing cumulative error.  The conviction 
and sentence were affirmed.  The New Jersey Supreme Court denied certification of the 
appeal without discussion.  Marsh then filed for post-conviction relief, which the 
Superior Court denied.  The New Jersey Superior Court, Appellate Division affirmed,  
and the New Jersey Supreme Court denied certification.   
Petitioner filed a writ of habeas corpus in federal district court, which was denied.  
The District Court issued a certificate of appealability on Petitioner’s claims of 
prosecutorial misconduct, ineffective assistance of counsel, and cumulative error.  This 
 
 
 
5 
 
timely appeal followed. 
II.2 
Where state courts address a claim on the merits, our review is limited by the 
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241–
2254.3  AEDPA restricts a federal court’s power to grant a writ of habeas corpus when a 
state court has already denied the same underlying claim on the merits, unless the state 
court’s adjudication of that claim “resulted in a decision that was contrary to, or involved 
an unreasonable application of, clearly established Federal law, as determined by the 
Supreme Court of the United States,” or “resulted in a decision that was based on an 
unreasonable determination of the facts in light of the evidence presented” to the state 
court.  28 U.S.C. § 2254(d)(1)–(2).   
A state court’s decision is “‘contrary to’ clearly established federal law if it 
‘applies a rule that contradicts the governing law set forth’ in Supreme Court precedent, 
or if it ‘confronts a set of facts that are materially indistinguishable from a decision of 
[the Supreme] Court and nevertheless arrives at a result different’ from that reached by 
the Supreme Court.”  Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting 
Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).  A state court’s decision unreasonably 
applies clearly established federal law if “no ‘fairminded juris[t]’ could have reached the 
same judgment as the state court.”  Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (quoting 
 
2 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254.  We 
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). 
3 We exercise plenary review over the District Court’s order denying a petition 
under AEDPA.  Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009). 
 
 
 
6 
 
Harrington v. Richter, 562 U.S. 86, 102 (2011)).  And a federal court reviews a challenge 
under 28 U.S.C. § 2254(d)(1) based solely upon the record before the state court.  Id.  
This “highly deferential standard” is “difficult to meet” and “demands that state-court 
decisions be given the benefit of the doubt.”  Cullen v. Pinholster, 563 U.S. 170, 181 
(2011) (citations omitted). 
A. 
Marsh claims prosecutorial misconduct based on the prosecutor’s inquiry into 
Marsh’s gun ownership, the prosecutor’s statement that Marsh laid in wait to murder 
Russo as with hunting, and the prosecutor’s parading of guns before the jury as noted 
above.  A habeas petition is granted for prosecutorial misconduct when the “prosecutor’s 
remark . . . so infected the trial with unfairness as to make the resulting conviction a 
denial of due process.”  Moore v. Morton, 255 F.3d 95, 106 (3d Cir. 2001) (quoting 
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).  Misconduct violates due process 
when it constitutes a “failure to observe that fundamental fairness essential to the very 
concept of justice.”  Id. at 105 (quoting Donnelly, 416 U.S. at 642).  To make this 
determination, “the reviewing court [] weigh[s] the prosecutor’s conduct, the effect of the 
curative instructions and the strength of the evidence.”  Id. at 107.  The question is 
whether the strength of the evidence “reduced the likelihood that the jury’s decision was 
influenced by the argument” such that the acts were not so prejudicial for “a curative 
instruction to [be unable to] mitigate their effect.”  Id. at 106–07 (citations omitted). 
Here, the New Jersey appellate court reasoned the “limiting instruction was 
sufficient to overcome any prejudice the State may have created in repeatedly referencing 
 
 
 
7 
 
defendant’s gun collection and marksmanship. . . . [T]he instruction reinforces the court’s 
prior statement to the jury that ‘[h]unting has nothing to do with this trial.’”  App. 71.  
We presume jurors follow limiting instructions.  See Samia v. United States, 599 U.S. 
635, 646 (2023).  And the New Jersey appellate court recognized “there was sufficient 
independent evidence upon which the jury could have relied in fairly reaching its verdict.  
Between Kissel’s testimony; the missing murder weapon; defendant’s admission to 
owning an American Derringer like the weapon used to kill the victim; and the cell phone 
records, which undercut defendant’s alibi; the jury had more than defendant’s hunting 
practices upon which to base its decision.”  App. 69.  The record demonstrates the trial 
court’s extensive curative instructions and the “overwhelming” evidence supporting a 
“finding of guilt” mitigated any “likelihood that the jury’s decision was influenced by” 
impermissible arguments.  Darden v. Wainwright, 477 U.S. 168, 182 (1986).   
Accordingly, the New Jersey appellate court’s ruling that the State did not engage 
in prosecutorial misconduct so egregious as to deprive Marsh of a fair trial is not an 
unreasonable application of clearly established law.  Thus, the prosecutorial misconduct 
claims fail. 
B. 
Marsh claims ineffective assistance of counsel based on his trial counsel’s failure 
to object to the prosecutor’s presentation of guns in the courtroom.  To prove ineffective 
assistance of counsel, Petitioner must demonstrate: (1) “counsel’s performance was 
deficient,” and (2) “the deficient performance prejudiced the defense.”  Strickland v. 
Washington, 466 U.S. 668, 687 (1984).  Prejudice means there is “a reasonable 
 
 
 
8 
 
probability that, but for counsel’s unprofessional errors, the result of the proceeding 
would have been different.”  Preston v. Superintendent Graterford SCI, 902 F.3d 365, 
382 (3d Cir. 2018) (quoting Strickland, 466 U.S. at 694).  Because evidence other than 
that of Petitioner’s gun possession is sufficient to support the verdict and we presume a 
trial judge’s instructions are followed, as discussed in detail above, it is unlikely the result 
of the proceeding would have been different had Marsh’s counsel acted differently.  See 
Samia, 599 U.S. at 646 (noting courts presume a limiting instruction is followed).  
Therefore, Marsh’s ineffective assistance of counsel claim fails. 
C. 
Marsh argues the cumulative effect of prosecutorial misconduct and counsel’s 
ineffectiveness violated his right to a fair trial.  Cumulative error exists when “errors, 
when combined, so infected the jury’s deliberations that they had a substantial influence 
on the outcome of the trial.”  United States v. Greenspan, 923 F.3d 138, 154 (3d Cir. 
2019) (citation omitted).  “[A] habeas petitioner is not entitled to relief based on 
cumulative errors unless he can establish ‘actual prejudice.’” Albrecht v. Horn, 485 F.3d 
103, 139 (3d Cir. 2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).  
Because of the jury charge, which we presume is followed, and the independent evidence 
supporting the conviction, discussed above, we defer to the New Jersey appellate court’s 
reasonable determinations and hold the cumulative effect of the alleged errors was 
unlikely to be outcome determinative.  See Samia, 599 U.S. at 646.  Accordingly, 
Marsh’s cumulative error claim fails.  
III. 
 
 
 
9 
 
We find the prosecutor’s conduct here concerning.  Nevertheless, under AEDPA’s 
deferential standard, we defer to the state court’s reasonable determinations even when 
this Court may have exercised its “independent judgment” differently.  Williams, 529 
U.S. at 411.  For the foregoing reasons, we will affirm. 


Frank Marsh, Jr. v. Attorney General New Jersey

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-8-2025 
Joseph Todaro, Sr. v. Superintendent Houtzdale SCI 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
 
No. 22-1227 
______________   
 
JOSEPH TODARO, SR., 
                             Appellant 
 
v. 
 
SUPERINTENDENT HOUTZDALE SCI; DISTRICT ATTORNEY CAMBRIA 
COUNTY; ATTORNEY GENERAL PENNSYLVANIA 
______________ 
 
Appeal from the United States District Court  
for the Western District of Pennsylvania  
(D.C. No. 3:21-cv-00205) 
District Court: U.S. Magistrate Judge Keith A. Pesto  
_________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on Sept. 19, 2024 
 
Before:  RESTREPO, McKEE, SMITH, Circuit Judges 
 
 (Filed: April 8, 2025 ) 
 
______________ 
 
OPINION* 
______________ 
 
RESTREPO, Circuit Judge 
 
* This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
 
2 
 
Appellant, Joseph Todaro, Sr., appeals the District Court’s dismissal of his 
Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254.  In dismissing the 
habeas petition, the Court concluded that Todaro’s claim challenging his counsel’s 
assistance was procedurally defaulted, and in any event, that his habeas claim was 
meritless.   
On appeal, this Court granted a certificate of appealability (“COA”) on the 
following issues: 
1. Whether petitioner’s procedurally defaulted claim of 
ineffective assistance of counsel is excused under Martinez v. 
Ryan, 566 U.S. 1 (2012), due to his post-conviction counsel’s 
failure to argue trial counsel[’s] [assistance] was ineffective in 
view of Commonwealth ex rel. Buchanan v. Verbonitz, 581 
A.2d 172 (Pa. 1990).  See also Commonwealth v. McClelland, 
233 A.3d 717 (Pa. 2020). 
 
2. Whether petitioner’s guilty plea prevents him from challenging 
the effectiveness of his trial or post-conviction counsel based 
on their alleged failure to detect the infirmity of his preliminary 
hearing.  Compare Tollett v. Henderson, 411 U.S. 258 (1973), 
and United States v. Porter, 933 F.3d 226 (3d Cir. 2019), with 
Boyd v. Waymart, 579 F.3d 330 (3d Cir. 2009) (en banc); see 
also Brown v. Swarthout, 2010 WL 3075700 (C.D. Cal. June 
21, 2010). 
 
3. Whether petitioner has stated a valid ineffective assistance of 
counsel claim, including, as to prejudice, whether he can show 
he “would have proceeded to trial instead of pleading guilty,” 
United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994), 
given his assertion that direct testimony from the victim would 
have raised doubts as to petitioner’s alleged intent.  Cf. 
Commonwealth v. Lombardo, 2015 WL 6168198 (Pa. Super. 
Feb. 24, 2015).    
 
App. 2-3.  Because we conclude Appellant’s procedural default is not excused under 
Martinez, we affirm the dismissal of the habeas petition. 
3 
 
I. Background 
 On May 3, 2018, Appellant entered a negotiated guilty plea with the assistance of 
trial counsel on two separate criminal Complaints filed in the Court of Common Pleas of 
Cambria County.  Specifically, Appellant entered a guilty plea to one count of Rape of a 
Mentally Disabled Person, 18 Pa. C.S.A. § 312(a)(5), and one count of Failure to Comply 
with Registration Requirements,1 18 Pa. C.S.A. § 4915.1(a).  In exchange, the 
Commonwealth nolle prossed all remaining charges and agreed to recommend an 
aggregate sentence of 15 to 30 years in prison.  The Commonwealth further represented 
to the Court that, after extensive discussions and agreement with the victim’s family, the 
Commonwealth would not seek the imposition of a mandatory sentence of life in prison 
as long as the terms of the plea agreement were ultimately upheld and enforced, which 
Appellant testified he understood.2  Indeed, Appellant’s trial counsel confirmed that the 
Commonwealth’s decision not to request a sentence of life in prison is why Appellant 
agreed to plead guilty. 
 On August 3, 2018, pursuant to the plea agreement, the Court sentenced Appellant 
to an aggregate sentence of 15 to 30 years in prison as follows: for the rape conviction, 
Appellant was sentenced to 180 to 360 months (15 to 30 years) in prison; for the failure 
 
1 Appellant was required under Megan’s Law to register as a sex offender due to a prior 
conviction.  
 
2 For his crimes against the victim, Appellant was facing a mandatory life sentence if 
convicted.  See 42 Pa. C.S.A. § 9718.2.  Appellant had multiple prior sexual convictions, 
including in January 1994, December 1999, and December 2005.  Appellant also had a 
prior conviction in 2007 for failing to register as a sex offender.    
4 
 
to comply with registration requirements, Appellant was sentenced to 60 to 120 months 
(5 to 10 years) in prison, to be served concurrently with the sentence imposed for the rape 
conviction.  No post-sentence motions or direct appeal were filed.   
 Appellant filed a pro se petition under the Pennsylvania Post Conviction Relief 
Act (“PCRA”).  The Court appointed counsel, who then filed a petition to withdraw as 
counsel.  Following Appellant’s reply, the PCRA Court granted counsel’s request to 
withdraw and dismissed the PCRA Petition.   
Appellant then filed a second pro se PCRA Petition, and the Court appointed 
counsel, who filed an Amended PCRA Petition.  Appellant filed a pro se Appeal Rights 
Argument, and his appointed counsel filed a motion to withdraw as counsel.  The PCRA 
Court granted the motion to withdraw and dismissed the second PCRA Petition.     
 Appellant filed a pro se Notice of Appeal to the Superior Court of Pennsylvania, 
and the PCRA Court then directed him to file a statement of errors complained of on 
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (“1925(b) 
Statement”).  Appellant then filed a 1925(b) Statement, and the PCRA Court filed an 
Opinion pursuant to Pennsylvania Rule 1925(a), addressing Appellant’s claimed errors.   
The Superior Court affirmed the PCRA Court’s decision dismissing the second PCRA 
Petition.  Commonwealth v. Todaro, 253 A.3d 314 (Pa. Super. 2021).  Appellant filed a 
petition for review in the Supreme Court of Pennsylvania, which denied allowance of 
appeal. 
 Appellant subsequently filed his pro se habeas petition in the District Court, and 
the Commonwealth filed a motion to dismiss the petition.  The District Court granted the 
5 
 
motion, dismissed the habeas petition, and denied the issuance of a COA.  The District 
Court found that Appellant could not show cause that would excuse his defaulted claim 
and that the claim was plainly meritless in any event.    
Appellant then filed this appeal, and a panel of this Court issued the 
aforementioned COA.  As to the first issue presented by the COA, we conclude that the 
procedural default of Appellant’s underlying claim of ineffective assistance of trial 
counsel is not excused under the narrow exception carved out in Martinez v. Ryan, 566 
U.S. 1 (2012), because it is not a “substantial” claim.3 
II. Preliminary Hearing 
At the preliminary hearing, held on September 14, 2017, the prosecution presented 
the testimony of: (1) Lindsey Groves, Psy.D., a licensed psychologist; (2) the victim’s 
mother (“Mrs. M”); and (3) Detective Thomas Keirn.  Among other things, Dr. Groves 
testified that, following evaluation, the victim (“T.M.”) placed in the lowest one percent 
of the population in communication, and the lowest four percent of the population in IQ 
testing.   
Testimony from Mrs. M and Detective Keirn also described T.M.’s mental 
deficiencies from their own observations and experience.  For example, Mrs. M 
confirmed that T.M. could not independently perform daily activities such as working, 
driving, or cooking for herself.  Dr. Groves testified to a reasonable degree of certainty 
 
3 Accordingly, since we affirm the dismissal of the habeas petition on these grounds, it is 
unnecessary to address the COA’s remaining issues. 
6 
 
within her field of expertise of clinical psychology that T.M.’s intellectual disability 
rendered her unable to consent to sexual intercourse.  
Mrs. M testified that after noticing suspicious, out-of-the-ordinary changes in 
T.M.’s behavior, it came to her attention that T.M. had been seen in the neighborhood 
going into nearby woods with a stranger.  Mrs. M and her husband drove to that location 
where they saw T.M. with Appellant near his vehicle.  They confronted him, and then 
warned him to stay away from T.M. “because any decent human being would know that 
she was individualized.”  SA38.   
Mrs. M testified that she later discovered T.M. in possession of a secret cell phone 
that Appellant had provided to the victim.  The police were later able to confirm that 
sexually explicit and graphic messages, videos, and voicemails on the phone, which 
included, among other things, Appellant’s sexually explicit intentions, were sent from 
Appellant’s phone to T.M.’s phone.  In addition to the police confirmation of the 
ownership and possession of the phones, Mrs. M testified that T.M. told her Appellant 
had given her the cell phone.    
T.M.’s gynecological exam revealed she had contracted a sexually-transmitted 
disease, and T.M. then indicated to Mrs. M that Appellant had sexual intercourse with 
her.  When asked whether she ever had sexual relations with any other people, T.M. 
confirmed to her mother that she had not.      
 Detective Keirn testified that T.M. also indicated to him that Appellant had sexual  
intercourse with her on multiple occasions.  The detective further testified that he was 
present at a forensic interview of T.M. conducted at a county child advocacy center that 
7 
 
was documented on video and audio recording.  It revealed that Appellant had also 
performed other sexual acts against her wishes.     
III. Discussion  
“A federal habeas court will not review a claim rejected by a state court ‘if the 
decision of [the state] court rests on a state law ground that is independent of the federal 
question and adequate to support the judgment.’”  Walker v. Martin, 562 U.S. 307, 315 
(2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)).  Such a default may be 
excused, however, if a petitioner “demonstrate[s] cause for the default and actual 
prejudice as a result of the alleged violation of federal law.”  Coleman v. Thompson, 501 
U.S. 722, 750 (1991).    
Here, Appellant acknowledges that his habeas claim is procedurally defaulted in 
the Pennsylvania courts.  However, he argues that his default should be excused because 
he can show cause for his default under Martinez v. Ryan, 566 U.S. 1 (2012).   
Martinez excuses a procedural default “caused by ineffective assistance of post-
conviction counsel . . . in the . . . initial-review collateral proceeding” if “the underlying 
claim of trial counsel ineffectiveness is ‘substantial,’ meaning ‘the claim has some 
merit.’”  Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (quoting Martinez, 566 U.S. at 
14).  Thus, to qualify for the exception under Martinez, Appellant must show that his 
underlying defaulted claim of ineffective assistance of trial counsel has “some merit” and 
that his state post-conviction counsel’s performance during the first collateral proceeding 
when the claim could have been properly raised fell below an objective standard of 
reasonableness.  Id. (quoting Martinez, 566 U.S. at 14).   
8 
 
To establish his underlying ineffective assistance of trial counsel claim, Appellant 
must demonstrate that counsel’s performance was constitutionally deficient and that he 
was prejudiced by that deficiency.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  
To satisfy the deficiency prong of the test, “the defendant must show that counsel’s 
representation fell below an objective standard of reasonableness.”  Id. at 687-88.  The 
prejudice prong of the test requires a showing that “there is a reasonable probability that, 
but for counsel’s unprofessional errors, the result of the proceeding would have been 
different.”  Id. at 694.  In the context of guilty pleas, such as in this case, the prejudice 
prong requires the defendant to allege and “show that there is a reasonable probability 
that, but for counsel’s errors, he would not have pleaded guilty and would have insisted 
on going to trial.”  Hill v. Lockhart, 474 U.S. 52, 59 (1985).          
The COA issued by a panel of this Court included the following underlying issue: 
“Whether petitioner’s procedurally defaulted claim of ineffective assistance of counsel is 
excused under Martinez v. Ryan, 566 U.S. 1 (2012), due to his post-conviction counsel’s 
failure to argue trial counsel[’s] [assistance] was ineffective in view of Commonwealth ex 
rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990).  See also Commonwealth v. 
McClelland, 233 A.3d 717 (Pa. 2020) (‘McClelland II’).”  App. 2 (final parenthetical 
added).  We conclude that petitioner’s defaulted claim (on which the COA was granted) – 
that trial counsel’s assistance was ineffective in view of Verbonitz – is not substantial, 
and the default is not excused under Martinez.  
In Verbonitz, a five-Justice majority of the Supreme Court of Pennsylvania in 
1990 “held hearsay evidence alone is insufficient to establish a prima facie case at a 
9 
 
preliminary hearing.”  McClelland II, 233 A.3d at 720 (emph. added).  The subsequent 
promulgation of Pennsylvania Rule of Criminal Procedure 542(E) in 2011, however, 
permitted the use of hearsay at preliminary hearings, id. at 733, as did the subsequent 
expansion of Rule 542 in 2013, id. at 734.4  As Pennsylvania’s Supreme Court pointed 
out in McClelland II, “the amended rule does not evince an articulated intent to overrule 
Verbonitz or re-affirm it; instead, subsection (E) is intended to allow some use of 
hearsay.”  Id. at 735 (emph. added).     
Here, in addressing the requirement that he is raising a substantial claim, citing 
Verbonitz, Appellant argues that his initial-review PCRA counsel rendered ineffective 
assistance in failing to raise the claim of “trial counsel’s ineffective assistance for failing 
to challenge [what Appellant characterizes as] the deficiency of [his] preliminary 
hearing” because “the only evidence offered was hearsay testimony.”  Appellant Br. 18.  
Appellant asserts that trial counsel’s assistance was ineffective in failing to advise him 
about the deficient preliminary hearing in his case and failing to take steps “to challenge 
the Commonwealth’s case through the filing of a pre-trial habeas petition.”  Id. at 19.         
In Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015), which was still good 
law at the relevant time period here, Pennsylvania’s Superior Court held that Rule 
542(E), which was promulgated and then expanded after Verbonitz, “does allow hearsay 
 
4 Rule 542 expressly permits the Commonwealth to introduce hearsay evidence to make a 
prima facie case: “Hearsay as provided by law shall be considered by the issuing 
authority in determining whether a prima facie case has been established.  Hearsay 
evidence shall be sufficient to establish any element of an offense[.]”  Pa. R. Crim. P. 
542(E) (emph. added); see also Pa. R. Crim. P. 542(E) cmt. (“[H]earsay, whether written 
or oral, may establish the elements of any offense.”).     
10 
 
evidence alone to establish a prima facie case.”  Id. at 357 (emph. added).  Indeed, at the 
time of Appellant’s preliminary hearing (and his guilty plea, sentence, and entry of final 
judgment, for that matter), Pennsylvania’s Superior Court opinion in Commonwealth v. 
McClelland, 165 A.3d 19 (Pa. Super. May 26, 2017) (“McClelland I”), had also not yet 
been reversed, and Ricker had not yet been disapproved.  See McClelland II, 233 A.3d at 
721, 736.  Similarly to Ricker, McClelland I “concluded hearsay evidence alone is 
sufficient to establish a prima facie case at a preliminary hearing,”   
Furthermore, due to the plea agreement, the Commonwealth did not request 
imposition of mandatory life in prison, which is no small matter.  See supra note 2.  Even 
assuming arguendo that hearsay evidence alone was offered at Appellant’s preliminary 
hearing, in light of the state of the law at the relevant time period and the conditions 
agreed to under the plea agreement, we cannot properly say that Appellant’s underlying 
ineffective assistance claim was substantial under Martinez.  See, e.g., Commonwealth v. 
Butler, 2024 WL 4512331, *2 (Pa. Super. Oct. 17, 2024) (holding that ineffective 
assistance claim that counsel failed to inform the defendant of the claim that the 
Commonwealth purportedly relied exclusively on hearsay to hold the charges for court 
“fails because [the] McClelland case was not decided until July 21, 2020, approximately 
eight months after [the defendant’s] judgment of sentence became final”); see also 
Strickland, 466 U.S. at 690 (counsel’s decision-making must be assessed based on the 
information counsel knew at the time); Sistrunk v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 
1996) (quoting Gov’t of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (“[T]here is no 
general duty on the part of defense counsel to anticipate changes in the law”).   
11 
 
Moreover, after Appellant’s preliminary hearing (and his guilty plea and the entry 
of Judgment), the Supreme Court of Pennsylvania held in McClelland II that considering 
Verbonitz and subsequently amended Pennsylvania Rule 542 together, amended Rule 542 
“is intended to allow some use of hearsay.”  McClelland II, 233 A.3d at 735 (emph. 
added); see supra note 4.  Therefore, even if the subsequent ruling in McClelland II were 
the law at the time of the relevant time period here, a review of the evidence at the 
preliminary hearing reveals that, contrary to Appellant’s conclusory assertion, the 
Commonwealth did not rely “solely” on hearsay testimony at the preliminary hearing, 
and McClelland II does not support a deficiency at the preliminary hearing here.  See, 
e.g., Appellant Br. 18-19 (“[T]he only evidence offered was hearsay testimony.”).   
IV. Conclusion 
Having considered the underlying issue presented by the COA - whether 
petitioner’s procedurally defaulted claim of ineffective assistance is excused under 
Martinez due to his post-conviction counsel’s failure to argue trial counsel’s assistance 
was ineffective in view of Verbonitz and McClelland, for the foregoing reasons, we 
conclude the underlying defaulted ineffective assistance of trial counsel claim is not 
“substantial” under Martinez, and Appellant’s default may not be excused.5  Accordingly, 
we affirm the dismissal of Appellant’s habeas petition.   
 
 
5 Having found Appellant’s default of his underlying habeas claim is not excused because 
it is not “substantial” under Martinez, it is unnecessary to address the other grounds 
raised by the Commonwealth supporting affirmance of the dismissal of the habeas 
petition.     


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