Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-2-2025 
Jason Samaritano v. State of New Jersey 
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Recommended Citation 
"Jason Samaritano v. State of New Jersey" (2025). 2025 Decisions. 442. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/442 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1889 
____________ 
 
JASON SAMARITANO, 
Appellant 
 
v. 
 
STATE OF NEW JERSEY; GLENN GRANT, in his official capacity; CRISTEN 
D’ARRIGO, Judge, New Jersey Superior Court, Law Division, Criminal Part, 
Cumberland County, in his official capacity; BENJAMIN C. TELSEY, Assignment 
Judge, New Jersey Superior Court, Cumberland County, in his official capacity; 
WILLIAM SCHARFENBERG, Assistant Prosecutor, Ocean County, in his individual 
capacity; LESLIE SNOCK, Assistant County Prosecutor in her individual capacity; 
TAYLOR TOSCANO, Assistant County Prosecutor, in her individual capacity; DAVID 
FOOTE, New Jersey State Police, Law Enforcement Officer, in his individual capacity; 
LOUIS PINTARO, in his individual capacity; LAW OFFICES OF JONATHAN F. 
MARSHALL 
____________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 3:24-cv-04102) 
District Judge:  Honorable Georgette Castner 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
May 23, 2025 
____________ 
 
Before:  PHIPPS, CHUNG, and ROTH, Circuit Judges 
 
(Filed: June 2, 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 
PHIPPS, Circuit Judge. 
A defendant who pleaded guilty in state court to charges related to fraud and stalking 
asserts that those charges had been initiated because of a state-wide conspiracy against him.  
He further alleges that a cyber harassment statute under which he had been prosecuted 
criminalized speech protected by the First Amendment and that he is being denied his Sixth 
Amendment right to counsel in the ongoing criminal case.  But instead of pursuing redress 
in the state courts for those putative constitutional violations, he initiated this civil rights 
suit in the District Court to challenge those charges and then sought to enjoin his pending 
state-court sentencing proceedings.  After the District Court declined to stay those 
proceedings on Younger abstention grounds, see Younger v. Harris, 401 U.S. 37 (1971), 
the defendant filed this appeal.  On de novo review, see PDX N., Inc. v. Comm’r N.J. Dep’t 
of Lab. & Workforce Dev., 978 F.3d 871, 881 n.11 (3d Cir. 2020), we will affirm. 
FACTUAL BACKGROUND & PROCEDURAL HISTORY 
By early 2023, Jason Samaritano had been charged in five criminal proceedings in 
the Superior Court of New Jersey in Cumberland County.  Four of those cases concerned 
fraud he had allegedly committed through his work as a construction contractor.  The 
remaining case charged Samaritano with harassing and threatening state judges and 
prosecutors through several means, including a Facebook post in which Samaritano 
allegedly listed certain judges’ and prosecutors’ names and home addresses and warned 
that there was “MORE TO COME.”  Compl. ¶ 52 (App. 54).  In March 2023, pursuant to 
a global plea agreement, Samaritano pleaded guilty to charges in three of the fraud-related 
proceedings and the stalking-related proceeding, and the charges in the final fraud-related 
proceeding were dismissed.   
3 
One year later, but before he was sentenced for any of the offenses, Samaritano 
initiated a suit in the District Court against several judges and prosecutors, as well as a 
police officer, the law firm that had previously represented him, and an attorney at that 
firm.  His complaint included claims under 42 U.S.C. § 1983 that those parties had violated 
his First and Fourteenth Amendment rights.  To support those claims, he contended that a 
prosecutor who owned a construction business was bringing charges against his 
competitors, who included Samaritano.  He also averred that the indictments, reports, and 
grand jury testimony included false and misleading information.  And as to the online posts, 
he asserted that they were discovered only because state employees were stalking his online 
profile and that prosecuting him for those statements violated his First Amendment rights. 
On May 9, 2024, the day before his scheduled sentencing hearing in state court, 
Samaritano filed a motion for a temporary restraining order or preliminary injunction in 
his federal case to stay the state-court proceedings.  In addition to contesting the validity 
of his guilty plea, he argued that the state court was denying him his Sixth Amendment 
right to counsel by refusing to permit him to be represented by the person of his choosing 
– an attorney who had been suspended from practicing law in New Jersey for refusing to 
pay sanctions imposed for an ethics violation.  Samaritano also asserted that the New Jersey 
Attorney General was violating his due process rights by refusing to investigate the 
misconduct alleged in his complaint.   
In exercising federal-question and civil-rights jurisdiction over Samaritano’s 
claims, see 28 U.S.C. §§ 1331, 1343, the District Court denied that motion, citing Younger 
v. Harris, 401 U.S. 37 (1971).  Through a timely notice of appeal of the order denying his 
motion for a preliminary injunction, Samaritano invoked this Court’s appellate jurisdiction 
over that order.  See 28 U.S.C. § 1292(a)(1). 
4 
Samaritano has received the carceral part of his sentence, but his criminal 
proceedings are still pending in Cumberland County.  On May 24, 2024, he was sentenced 
to 364 days’ imprisonment with credit for time served and to three years’ probation.  But 
the Superior Court has not yet determined whether Samaritano owes restitution to the 
victims of his fraud – that hearing is scheduled for June 27, 2025. 
DISCUSSION 
Generally, a federal court has a “virtually unflagging” obligation to hear a case 
within its jurisdiction.  Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting 
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).  But as 
an exception to that principle, Younger abstention prohibits a federal court from enjoining 
ongoing state-court criminal proceedings absent “exceptional circumstances creating a 
threat of irreparable injury ‘both great and immediate.’”  Kugler v. Helfant, 421 U.S. 117, 
123 (1975) (quoting Younger, 401 U.S. at 46).1  Because the Cumberland County Superior 
Court has not yet resolved the restitution component of Samaritano’s sentence, he is subject 
to ongoing state-court criminal proceedings, and thus this case turns only on the 
applicability of the extraordinary-circumstances safety valve. 
As a baseline, the “cost, anxiety, and inconvenience” that normally accompany a 
criminal prosecution do not qualify as extraordinary circumstances.  Younger, 401 U.S. at 
46.  Rather, recognized extraordinary circumstances include “bad faith, harassment, or a 
 
1 The Supreme Court has extended the Younger doctrine to quasi-criminal civil 
enforcement proceedings.  See Borowski v. Kean Univ., 68 F.4th 844, 849 (3d Cir. 2023).  
When the state-court proceedings are quasi-criminal, they must satisfy three supplemental 
conditions – commonly referred to as the Middlesex conditions – to warrant abstention.  
See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); 
Borowski, 68 F.4th at 849 (citing Middlesex, 457 U.S. at 432).  But when, as here, the state-
court proceedings are criminal, it is not necessary to consider the Middlesex factors.  See 
Borowski, 68 F.4th at 849; see also Sprint, 571 U.S. at 81 (explaining that the Middlesex 
factors should not be “[d]ivorced from their quasi-criminal context”). 
5 
patently invalid state statute.”  Sprint, 571 U.S. at 77 (citing Younger, 401 U.S. at 53–54); 
cf. Evans v. Ct. of Common Pleas, 959 F.2d 1227, 1234–35 (3d Cir. 1992) (acknowledging 
that extraordinary circumstances can include situations in which a trial would constitute 
double jeopardy and thus deprive a defendant of the right not to stand trial that could not 
later be vindicated).  Here, Samaritano’s conclusory, unsupported assertions of a 
conspiracy against him are insufficient to demonstrate bad faith or harassment.  See Kugler, 
421 U.S. at 126 n.6 (explaining that in the context of Younger abstention, ‘bad faith’ 
“generally means that a prosecution has been brought without a reasonable expectation of 
obtaining a valid conviction”); Evans, 959 F.2d at 1234 (“[E]ven a claim of prosecutorial 
vindictiveness will not suffice to overcome the general principle that federal review of a 
criminal prosecution is unavailable before the state proceeding is completed.”).  And 
despite Samaritano’s protestations otherwise, the New Jersey cyber harassment statute, see 
N.J. Stat. Ann. § 2C:33-4.1(a), that provided the basis for some of the counts for which he 
was originally charged, is not patently invalid, cf. United States v. Yung, 37 F.4th 70, 77–
81 (3d Cir. 2022) (upholding a similar statute as constitutional under a narrow reading); 
State v. Carroll, 196 A.3d 106, 115 (N.J. Super. Ct. App. Div. 2018) (concluding that there 
was no probable cause in a prosecution under § 2C:33-4.1 but treating the statute as valid).  
Nor is there any reason to believe that Samaritano would not have adequate redress in the 
New Jersey state court system.  See Moore v. DeYoung, 515 F.2d 437, 448 (3d Cir. 1975) 
(“[I]nvocation of the ‘extraordinary circumstances’ exception must bring into play the 
suggestion of an inability of the state forum to afford an adequate remedy at law.”).  
Without any extraordinary circumstances, Younger abstention prevents a federal court 
from enjoining Samaritano’s state-court criminal proceedings. 
6 
CONCLUSION 
For the reasons above, we will affirm the order of the District Court denying 
Samaritano preliminary injunctive relief. 


English

Jason Samaritano v. State of New Jersey

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-5-2025 
Angel Martinez v. Superintendent Forest SCI 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Angel Martinez v. Superintendent Forest SCI" (2025). 2025 Decisions. 461. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/461 
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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. 23-1888 
____________ 
 
ANGEL L. MARTINEZ,  
Appellant 
 
v. 
 
SUPERINTENDENT FOREST SCI;  
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE 
____________ 
 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania 
(D.C. Civil No. 4:20-cv-00971) 
District Judge: Honorable Matthew W. Brann 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
on May 15, 2025  
 
Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges 
 
(Opinion filed: June 5, 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 
FREEMAN, Circuit Judge. 
 
Angel L. Martinez sought a writ of habeas corpus based on ineffective assistance 
of his trial counsel.  For the following reasons, we will affirm the District Court’s order 
denying relief. 
I 
In 2012 and 2013, the Commonwealth of Pennsylvania charged Martinez with 
sexual offenses against his three children.  Just before the parties began selecting a jury, 
the Commonwealth stated on the record that it had made two plea offers to resolve all 
charges against Martinez.  It specified that one offer was for 20 to 40 years’ 
imprisonment and the other was for 15 to 50 years’ imprisonment.  Martinez did not 
dispute the Commonwealth’s statements.  He proceeded to trial, was convicted on 18 
counts, and was sentenced to an aggregate term of 81 1/2 to 163 years’ imprisonment.  
On direct appeal, the Pennsylvania Superior Court affirmed his convictions but vacated 
his sentence.  He was resentenced to the same aggregate term of imprisonment and did 
not appeal. 
Martinez then petitioned for state post-conviction relief.  As relevant here, he 
asserted that his trial counsel was ineffective for failing to communicate two plea offers.  
At an evidentiary hearing, Martinez testified to the same.  When asked whether he was 
“planning on plead[ing] guilty,” he responded, “No.”  Supp. App. 32.  His trial counsel 
did not testify. 
 
3 
The post-conviction court denied the petition, and the Superior Court affirmed.  
Relying on Martinez’s testimony that he was not planning on pleading guilty, the 
Superior Court concluded that Martinez failed to show he would have accepted the 
Commonwealth’s plea offer. 
In his federal habeas petition, Martinez again raised an ineffective-assistance 
claim based on trial counsel’s failure to communicate the Commonwealth’s plea offers.  
The District Court determined that the Superior Court reasonably rejected this claim. 
Martinez timely appealed.  We granted a certificate of appealability as to whether 
his trial counsel provided ineffective assistance by failing to communicate the two plea 
offers. 
II1 
Because the District Court did not hold an evidentiary hearing, our review of the 
District Court’s order is plenary.  Laird v. Sec’y, Pa. Dep’t of Corr., 129 F.4th 227, 242 
(3d Cir. 2025).  We review state-court determinations under the same standard applied by 
the District Court.  Id.  We cannot grant Martinez habeas relief unless the Superior 
Court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly 
established Federal law, as determined by the Supreme Court of the United States” or 
(2) “was based on an unreasonable determination of the facts in light of the evidence 
presented in the State court proceeding.”  28 U.S.C. § 2254(d). 
 
1 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254.  This Court has 
jurisdiction under 28 U.S.C. §§ 1291 and 2253. 
 
4 
To prevail on his ineffective-assistance claim, Martinez must show that trial 
counsel’s performance was deficient and resulted in prejudice.  Strickland v. Washington, 
466 U.S. 668, 687 (1984).  To demonstrate prejudice from counsel’s failure to 
communicate a plea offer, he must show “a reasonable probability that but for counsel’s 
errors he would have accepted the plea.”  Lafler v. Cooper, 566 U.S. 156, 171 (2012).  
The Superior Court determined that he did not do so.  Its decision does not run afoul of 
§ 2254(d).  Accordingly, we will affirm the District Court’s order denying Martinez’s 
habeas petition. 


Angel Martinez v. Superintendent Forest SCI

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-6-2025 
Judy Percival v. Kelley Zimmerman 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Judy Percival v. Kelley Zimmerman" (2025). 2025 Decisions. 462. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/462 
This June 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. 24-2232 
__________ 
 
JUDY CHRISTIAN PERCIVAL, 
   Appellant 
 
v. 
 
KELLEY ZIMMERMAN; JOANNE MULLIN; POLICE CHIEF ROBERT ADAMS; 
SYLVIA SULLIVAN; TERRI GROVER; AXION HEALTHCARE LLC; AXION 
CONTACT CENTER LLC, DBA Axion Healthcare Solutions LLC 
__________ 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:23-cv-03993) 
District Judge: Honorable Chad F. Kenney 
__________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 5, 2025 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed: June 6, 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 
 
 Appellant Judy Percival appeals the District Court’s orders dismissing her 
complaint as time-barred and denying her motion for reconsideration.  Because the 
District Court did not err in deeming the claim time barred, we will affirm the judgment.  
I. 
 Percival, a Florida resident, was employed by Axion Contact Center from 
April 2016 to January 2018, and then again from August 2020 to January 2022.  Percival 
was terminated from her position, and she filed complaints alleging employment 
discrimination with the New York State Division of Human Rights (“NYSDHR”) and the 
Equal Employment Opportunity Commission (“EEOC”).  After the investigations closed, 
the EEOC issued Percival a right-to-sue letter that she received on October 28, 2022.   
 Percival filed a pro se federal complaint in the Southern District of New York via 
email to its temporary pro se filing email address.1  To the complaint, Percival attached 
several Microsoft Outlook generated delivery notifications from her attempts at filing that 
included handwritten notes of Percival’s communications with the pro se office.  The 
District Court docketed the complaint on February 10, 2023.  Percival hired an attorney 
who filed the operative amended complaint on June 30, 2023.  The case was transferred 
to the District Court for the Eastern District of Pennsylvania on stipulation by the parties.   
 
1  Under Fed. R. Civ. P. 5(d)(3)(b), a pro se litigant may file electronically if allowed by 
court order or local rule.  When Percival filed, the Southern District allowed pro se 
litigants to file via email to: temporary_pro_se_filing@nysd.uscourts.gov.  See 
https://nysd.uscourts.gov/sites/default/files/2021-04/2021-04-21-Email-Instructions-pro-
se-filings-final.pdf. 
3 
 
Appellee2 filed a motion to dismiss under Federal Rule of Civil Rule 12(b)(6) 
asserting that Percival had failed to file her original complaint within 90 days of receiving 
a right-to-sue letter from the EEOC as required by 42 U.S.C. § 2000e-5(f)(1).  Appellee 
further asserted that Percival had failed to exhaust her administrative remedies, and that 
she otherwise failed to state a plausible claim under the ADA.  The District Court 
determined the complaint was untimely on its face and granted Appellee’s motion to 
dismiss.3  Percival filed several letter motions for reconsideration, which the District 
Court denied.  Percival timely appealed.4  
II. 
In her briefs,5 Percival argues that the District Court ignored evidence 
demonstrating that she had timely filed her complaint.  In the alternative, Percival argues 
that the District Court erred in not applying equitable tolling because Appellee had 
 
2 Appellee refers only to Axion Contact Center as the parties’ prior stipulation dismissed 
with prejudice Percival’s claims against the individual defendants.   
3 Because the District Court dismissed the complaint solely as being time barred and 
declined to reach Appellee’s other arguments as to why Percival had failed to state a 
claim, we do not address her arguments on appeal regarding the merits of the case.  See 
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (noting the “general rule . . . that a federal 
appellate court does not consider an issue not passed upon below”). 
4 We have jurisdiction under 28 U.S.C. § 1291.  We may affirm the District Court's 
judgment on any basis supported by the record.  See Hildebrand v. Allegheny County, 
757 F.3d 99, 104 (3d Cir. 2014). 
5 Percival filed an informal brief and a supplemental brief.  She also filed a motion for 
leave to file a second supplemental brief, which we grant.  We will consider the issues 
she raised in the three briefs. 
4 
 
interfered with her ability to file in an “extraordinary way,” namely by hijacking her 
email and rerouting documents she had been sending to her then-lawyer in support of her 
complaint.   
Statutes of limitations are affirmative defenses that may only be addressed on a 
Rule 12(b)(6) motion if untimeliness is apparent on the face of the complaint.  Schmidt v. 
Skolas, 770 F.3d 241, 249 (3d Cir. 2014).  Where, as here, the District Court considered 
documents beyond the face of the pleadings to determine the date of filing and considered 
whether equitable tolling applied,6 the issue should have been treated “in a manner 
consistent with Rule 56 for summary judgment.”  Robinson v. Dalton, 107 F.3d 1018, 
1022 (3d Cir. 1997).  “However, we will not reverse the district court’s dismissal if, 
applying the same test the district court should have utilized initially, plaintiff is not 
entitled as a matter of law to equitable tolling.”  Id. (cleaned up).  The summary judgment 
standard requires that “we view the evidence in the light most favorable to [Percival] and 
take all of [her] allegations as true.”  Id.   
A. 
To bring an ADA discrimination claim in federal court, the plaintiff must file a 
claim with the EEOC, receive a right-to-sue letter, and then file her federal complaint 
 
6 While Percival attached relevant documents to her original complaint, she did not attach 
those documents to the amended complaint, and thus they are not properly part of the 
motion-to-dismiss analysis.  See Royal Canin U. S. A., Inc., v. Wullschleger, 604 U.S. 
22, 35 (2025); Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 40 n.2 (1st 
Cir. 2013).   
5 
 
within 90 days of receipt of the letter.  Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 
108, 108 n.4 (3d Cir. 2003); 42 U.S.C. § 2000e-5(f)(1).  Percival received her right-to-sue 
letter on October 28, 2022, giving her until January 26, 2023, to file her federal 
complaint.   
The District Court determined the complaint was untimely based on the evidence 
Percival claims was ignored.  As the District Court noted, Percival twice attempted to file 
via email on January 25, 2023.  Her first attempt returned a Microsoft Office notification 
that delivery had failed.  Her second attempt returned a notification that delivery was 
complete.  On January 26, 2023, Percival sent another email and received the same 
notification.  Both of those emails were sent to temporaryprosefiling@nysd.uscourts.gov, 
rather than the address that the Southern District provided, 
temporary_pro_se_filing@nysd.uscourts.gov.  The documents then show Percival called 
the pro se office on February 10, 2023, when she was informed that there were “no 
records located” and she should “send again” to 
temporary_pro_se_filing@nysd.uscourts.gov.   
A complaint is considered filed when it is received by the Clerk.  See, e.g., 
McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996).  The record 
evidence shows that the Clerk’s Office received only Percival’s properly addressed 
February 10, 2023 complaint.  Thus, the District Court correctly determined that the 
complaint was filed on that date—more than 90 days after Percival received the right-to-
sue letter. 
6 
 
B. 
We have construed the 90-day period as a strict statute of limitations and have held 
that “in the absence of some equitable basis for tolling, a civil suit filed even one day late 
is time-barred and may be dismissed.”  Burgh v. Borough Council of Montrose, 251 F.3d 
465, 470 (3d Cir. 2001) (citation omitted).  Equitable tolling has been found appropriate 
in “sufficiently inequitable circumstances [such as] (1) where the defendant has actively 
misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in 
some extraordinary way has been prevented from asserting his or her rights; or (3) where 
the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”  Hedges 
v. United States, 404 F.3d 744, 751 (3d Cir. 2005) (cleaned up).  However, equitable 
tolling is applied “sparingly” and is not available where there is only a “garden variety 
claim of excusable neglect.”  Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990). 
Percival claims that Appellee hijacked her email, which “in some extraordinary 
way” prevented her from asserting her rights.  But there is no evidence in the lengthy 
record supporting Percival’s allegation that Appellee had hijacked her email or that 
Appellee had rerouted her emails and prevented her from sending documents to her then-
lawyer.  Further, Percival alleged that this hijacking occurred on January 23, 2023, and 
she does not allege that Appellee interfered with her emails to the District Court on 
January 25 and 26, 2023.  Percival was thus not prevented “in some extraordinary way” 
from asserting her rights.   
7 
 
Further, courts have held that mailing a complaint or appeal to the wrong address 
despite proper instructions, without more, is one of those “garden variety claim[s] of 
excusable neglect” to which equitable tolling does not apply.  See, e.g., Thompson v. 
Comm’r of Soc. Sec. Admin., 919 F.3d 1033, 1036–37 (8th Cir. 2019) (holding no 
equitable tolling applied because by mailing the appeal to the wrong address after being 
provided proper instructions, the plaintiff was “responsible for his own delay” and there 
had been “no external obstacle that prevented a timely filing”); see also Holland v. 
Florida, 560 U.S. 631, 657 (2010) (Alito, J., concurring) (characterizing “mail[ing] the 
petition to the wrong address” as an example of an error that would not warrant tolling).  
Percival similarly failed to fully follow the instructions provided her, see supra n.1, and 
thus sent her complaint to the wrong email address.  Because her failed filing was due to 
her own error, Percival is not entitled to equitable tolling on that basis, either.   
Because Percival is as a matter of law not entitled to equitable tolling, we will 
affirm the District Court’s judgment.7 
 
 
7  We review the District Court’s denial of a motion for reconsideration for abuse of 
discretion, Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 
(3d Cir. 1999), which we do not discern here.  Percival did not present any evidence that 
had not been available to her prior to the April 2, 2024 order and judgment.   


Judy Percival v. Kelley Zimmerman

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-9-2025 
USA v. Jose Marte 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Jose Marte" (2025). 2025 Decisions. 473. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/473 
This June 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. 24-1540 
 ______________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
JOSE MIGUEL MARTE, a/k/a ANTONIO SOSA-HERNANDEZ, a/k/a NELSON 
FERREIRA, a/k/a GERSON DIAZ, 
Appellant 
______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cr-00115-001) 
U.S. District Judge:  Honorable Karen S. Marston 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
May 16, 2025 
______________ 
 
Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges. 
 
(Filed: June 9, 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 
 
SHWARTZ, Circuit Judge. 
Jose Miguel Marte appeals his conviction for illegally re-entering the United 
States after being deported.  Because his challenges to the District Court’s order denying 
his motion to dismiss and its treatment of his suppression motion fail, we will affirm. 
I 
 In 1994, Marte, using the alias Antonio Sosa-Hernandez, was detained in 
connection with a drug investigation and turned over to the Immigration and 
Naturalization Service (“INS”).  The INS issued an Order to Show Cause (“OSC”) 
charging that he was subject to deportation and ordering him to appear at a hearing before 
an Immigration Judge (“IJ”).  The OSC informed Marte that (1) notice of the time and 
location of his hearing would be mailed to the address provided, (2) he was required to 
notify the INS of any address changes, (3) he could be ordered deported in absentia if he 
failed to appear at the hearing, and (4) such an order could be rescinded only upon a 
showing that “exceptional circumstances” prevented his appearance or that he did not 
receive written notice of the hearing after notifying the INS of any address changes.  
Supp. App. 88.  The address provided was “726 E. Allegheny Ave., Phila., PA.”  Supp. 
App. 85.1  The OSC was personally delivered and read to Marte.  Thereafter, the INS 
mailed notice of the hearing’s time and place to the address provided for Marte, but the 
letter was returned as undeliverable.   
 
1 A typewritten address of “726 E. Hilton Street, Philadelphia, PA,” was crossed 
out and replaced by hand with “726 E. Allegheny Ave., Phila., PA.”  Supp. App. 85. 
3 
 
In 1995, Marte failed to appear for his hearing and was ordered to be deported in 
absentia (the “1995 Deportation Order”).  He was found in the United States in 1997 and 
was deported following a hearing based on the 1995 Deportation Order.  Two times 
thereafter, in 2000 and 2016, Marte was found in the country and again deported.2   
 In 2021, Marte was arrested on state drug charges and later indicted by a federal 
grand jury for illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2).  
Marte moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d), claiming he did 
not receive notice of the 1995 deportation hearing and received ineffective assistance of 
counsel during his 1997 deportation hearing.  The District Court denied his motion, 
finding that the entry of the 1995 Deportation Order was not fundamentally unfair 
because Marte (1) received sufficient notice of the 1995 hearing under the statute and (2) 
failed to demonstrate that he received ineffective assistance of counsel at the 1997 
hearing.  Marte also moved to suppress evidence of his identity gathered during the 2021 
arrest that led to his indictment, but before the suppression motion was decided, he 
pleaded guilty.  He waived most of his appellate rights in his plea agreement but reserved 
the right to appeal the order denying his motion to dismiss.   
Marte appeals.   
II3 
 
2 Marte used various aliases, including “Antonio Sosa-Hernandez,” and was issued 
multiple alien numbers.   
3 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 
jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over the District 
Court’s ruling on the legality of the underlying deportation order.  See United States v. 
 
4 
 
 Marte argues that the District Court erroneously denied his motion to dismiss and 
ignored his motion to suppress.  We address each argument in turn.   
A 
As relevant here, a defendant charged with violating 8 U.S.C. § 1326 “may not 
challenge the validity of the deportation order [which forms the predicate for his § 1326 
charge] unless the [defendant] demonstrates that . . . the entry of the order was 
fundamentally unfair.”  8 U.S.C. § 1326(d).  To succeed on a fundamental unfairness 
claim, the defendant “must show not only that the underlying proceeding suffered some 
fundamental defect, but also that the result of the defect was prejudicial.”4  United States 
v. Charleswell, 456 F.3d 347, 358 (3d Cir. 2006).   
Marte argues that entry of the 1995 Deportation Order was fundamentally unfair 
because he (1) did not receive notice of his 1995 deportation hearing and (2) received 
ineffective assistance of counsel at the 1997 hearing.  Neither argument has merit. 
1 
 The notice requirements associated with Marte’s 1995 deportation proceedings 
were governed by the now-repealed 8 U.S.C. § 1252b.  See Luntungan v. Att’y Gen., 449 
F.3d 551, 555-56 (3d Cir. 2006) (explaining § 1252b applies “to aliens who were placed 
in proceedings before April 1, 1997”).  The statute required that the INS provide written 
 
Charleswell, 456 F.3d 347, 351 (3d Cir. 2006).  In so doing, we “review the District 
Court’s factual findings for clear error and [] decisions of law [de novo].”  Id.  
4 Because we conclude that Marte has failed to demonstrate that the entry of his 
1995 Deportation Order was fundamentally unfair, we do not reach the other § 1326(d) 
requirements. 
5 
 
notice of the charges against the individual in an OSC and serve such notice through 
either personal service or certified mail.  8 U.S.C. § 1252b(a)(1) (repealed 1996).  In 
addition to the OSC, the INS had to provide written notice of the hearing, specifying “the 
time and place at which the proceedings will be held.”  8 U.S.C. § 1252b(a)(2)(A)(i).  
Written notice of the hearing is “considered sufficient” upon proof of mailing to the listed 
address.  8 U.S.C. § 1252b(c)(1).5 
 The INS personally served Marte with the OSC and read it to him, and thereafter, 
mailed notice of the hearing’s time and place to the most recent address it had for Marte.   
At all times, Marte was on notice that the INS would try to reach him at this address.  8 
U.S.C. § 1252b(c).  The notice of hearing was returned as undeliverable because it was 
addressed to “Antonio Sosa-Hernandez,” the false name Marte provided to the INS.  As 
the District Court aptly observed, Marte should not be permitted to benefit from his lie.  
Cf. Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005) (“An alien should not be able to 
make himself unreachable, and then later ask to have his case reopened because he did 
not receive notice.”).  Given Marte’s false statements, which impeded delivery of the 
notice to him, the entry of the 1995 Deportation Order was not fundamentally unfair 
based on notice.6   
 
5 See also Ramos-Olivieri v. Att’y Gen., 624 F.3d 622, 625 (3d Cir. 2010) 
(explaining that under the successor statute to 8 U.S.C. § 1252b, “written notice [of a 
deportation hearing] is sufficient if mailed to the most recent address provided by the 
alien”); Adeyemo v. Ashcroft, 383 F.3d 558, 560 (7th Cir. 2004). 
6 Because Marte fails to show insufficient notice, we need not decide whether 
Marte was prejudiced by any alleged lack of notice.  See Charleswell, 456 F.3d at 358 
(requiring defendant to demonstrate both a fundamental defect in process and that the 
alleged defect prejudiced him). 
6 
 
2 
Marte also fails to show that his counsel’s representation in the 1997 hearing 
rendered the 1995 Deportation Order fundamentally unfair.  We have recognized that an 
individual’s “right to counsel in an immigration hearing before an IJ is so fundamental to 
the proceeding’s fairness that a denial of that right could rise to the level of fundamental 
unfairness.”  Charleswell, 456 F.3d at 360.7  To demonstrate ineffective assistance of 
counsel, a defendant must show that “competent counsel would have acted otherwise,” 
and that the defendant “was prejudiced by counsel’s poor performance.”  Fadiga v. Att’y 
Gen., 488 F.3d 142, 157 (3d Cir. 2007) (internal quotation marks omitted).  To 
demonstrate prejudice, the defendant must “show that there was a reasonable likelihood 
that the result would have been different if the error[s] . . . had not occurred.”  Id. at 159 
(internal quotation marks omitted). 
As the District Court found, Marte offers little evidence in support of his 
allegations regarding his counsel’s incompetence and has not demonstrated a “reasonable 
likelihood” that any relevant outcome would have been different had he been afforded 
competent counsel.  See Fadiga, 488 F.3d at 159 (internal quotation marks omitted).  For 
example, contrary to Marte’s assertion otherwise, his counsel did appear at the 1997 
proceeding.  Furthermore, Marte fails to explain how he would be entitled to withholding 
relief or would have prevailed on appeal, and he fails to provide any details regarding the 
 
7 See also Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (stating an  
ineffective assistance of counsel claim in removal proceedings “is cognizable” under the 
Fifth Amendment’s due process clause). 
7 
 
purported conflicts or substantial assistance he allegedly provided to law enforcement.  
Therefore, Marte has not shown that entry of the 1995 Deportation Order was 
fundamentally unfair due to ineffective assistance of counsel. 
B 
 Marte’s challenge to the District Court’s failure to adjudicate his suppression 
motion also fails.  Marte was aware that: (1) the motion was not resolved when he 
entered his guilty plea; and (2) the appellate waiver in his plea agreement preserved only 
his challenge to the order denying his motion to dismiss.  Moreover, because he pleaded 
guilty, his conviction was not based “in any way on evidence that may have been 
improperly seized.”  United States v. Porter, 933 F.3d 226, 229 (3d Cir. 2019) (internal 
quotation marks omitted).  Accordingly, Marte’s challenge based on the District Court’s 
failure to decide his motion to suppress fails. 
III 
For the foregoing reasons, we will affirm. 


USA v. Jose Marte

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-24-2025 
Margo Weems v. City of Philadelphia 
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"Margo Weems v. City of Philadelphia" (2025). 2025 Decisions. 518. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2333 
__________ 
 
MARGO A. WEEMS, and her child TMW, 
     Appellant 
      
v. 
 
CITY OF PHILADELPHIA; OFFICE OF THE CITY SOLICITOR;  
DEPARTMENT OF HUMAN SERVICES, to include but not limited to community 
umbrella agencies (3) BHS, CARO, CYD, CPS; CITY OF PHILADELPHIA DHS 
DOCTOR FOOTE; NURSE GINA WEAL, RN; NOA GLICK, PSYD;  
JENNIFER COLE, Forensic Mental Health Services, LLC; ATA INTERACT; 
PHILADELPHIA COUNTY COURT JUDGES VINCENT W. FURLONG; 
MARGARET T. MURPHY; DUANE GREY; WALTER J. OLSZEWSKI; 
HONORABLE JUDGE MARTINEZ; INTERCOMMUNITY ACTION, Grenridge 
Counseling; LENA HAYES; JOANNE MINERVA, PSYD; AMANDA KUMAR;  
ACS MCLAUGHLIN; CAROLINE B. CURLEY; KATHLEEN K. BOLA;  
JONATHAN HOULON; CHILD ADVOCATE CURLEY ANTELL;  
CHILD ATTORNEY LUE B. FRIERSON; FORENSIC MENTAL HEALTH 
SERVICES LLC, ATA; WILLIAM RUSSELL, PHD; ERICA G. WILLIAMS; 
MORGAN GERHART, M.A.; BEHAVIORAL HEALTH FORENSIC EVAL CENTER; 
JOSEPH FOOTE, PSYD; BRIAN BELL, DHS Worker; BENITA KING;  
PAULETTE MATTHEWS, DHS SUP; KHADRA SEALES, Practice Specialist; 
CARLA N. GARDNER; CLEARANCE TERPLAY, SW Facilitator; DEPARTMENT 
OF HUMAN SERVICES COMMISSIONERS, Cynthia F. Figueroa, Kimberly Ali;  
DHS CUA TURNING POINTS; CIERA BRADSHER; ASHLEY GARRISON; 
MICHELLE DAVIS; ALEISHA LOMAX; RSRI DENISE ANTROM; CM CARSON 
VALLEY CHILD; C.H.O.P. MADELINE BELL; MICHELLE LAMBERT, MD; 
JENNIFER BRENTON, PSYD; TRUDY JOHNSON, SW; HELGE HARTHUNG, MD; 
CHILDRENS HOSPITAL OF PHILADELPHIA; JODI HOULON, LSW;  
DENISE FITZPATRICK, MD; PHILADELPHIA LAW DEPARTMENT 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(E.D. Pa. Civil Action No. 2:22-cv-03961) 
 
2 
 
District Judge:  Honorable Gerald J. Pappert 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
June 20, 2025 
 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed June 24, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
In 2016, pro se appellant Margo Weems took her minor child to the Children’s 
Hospital of Philadelphia (“CHOP”) with a fever.  After CHOP staff contacted the City of 
Philadelphia’s Department of Human Services (“DHS”), dependency proceedings were 
initiated in family court.  In April 2019, the family court terminated Weems’s parental 
rights, but that decision was later vacated on appeal.   
In October 2022, while those family court proceedings appeared to be ongoing, 
Weems filed a civil action in the District Court against numerous individuals and entities.  
She alleged, inter alia, that the defendants conspired in various ways to take her child 
from her in violation of her constitutional and other rights.  D.Ct. ECF No. 2 at 1-4.1  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
1 Weems filed the civil action on behalf of herself and her minor child.  However, as the 
District Court noted, pro se litigants who are not attorneys may not represent other 
people, including their children, in federal court.  See Osei-Afriye v. Med. Coll. of Pa., 
937 F.2d 876, 882-83 (3d Cir. 1991).   
 
3 
 
Amongst other relief, Weems sought monetary damages, the return of her child, and 
“charge[s] placed on workers, Judges [and] lawyers found guilty of ruining child [and] 
families.”  Id. at 5.   
The various parties filed motions to dismiss.  In a thorough and lengthy opinion, 
the District Court granted those motions, dismissing some claims and parties with 
prejudice and others without, and giving Weems an opportunity to amend.  See D.Ct. 
ECF No. 101.  Some time-barred claims were dismissed without prejudice, giving 
Weems an opportunity to “allege facts which could establish a basis for equitable 
tolling.”  Id. at 20.  Weems was advised that any amended complaint “must identify all 
defendants in the caption of the amended complaint in addition to identifying them in the 
body,” as well as “state the basis for [her] claims against each defendant.”  D.Ct. ECF 
No. 102 at 2.  She was further advised that any amended complaint “shall be a complete 
document that does not rely on the initial complaint or other papers filed in this case to 
state a claim.”  Id. at 2-3.   
Thereafter, Weems filed a 100-page purported amended complaint.  It consisted of 
a 4-page “Statement of Claim,” a motion to toll the statute of limitations, and numerous 
pages of “evidence/exhibits.”  See D.Ct. ECF No. 107.  That filing failed to comply with 
the instructions of the District Court, listing as defendants in the caption “CHOP, City of 
Phila. Itself & it’s associates, etc. etal.”  Id. at 1.  The body of the complaint also failed to 
list the defendants or provide specifics as to each’s involvement.   
The defendants again moved to dismiss for failure to state a claim.  The District 
Court granted the motions, noting that Weems’s amended complaint “addresses none of 
 
4 
 
the shortcomings noted” by the Court.  D.Ct. ECF No. 126 at 1.  It determined that, 
“[w]hile Weems broadly references her constitutional rights, discrimination, retaliation, 
professional liability, medical malpractice and criminal offenses, it is not clear what 
claims she purports to bring, much less which specific defendants she wishes to bring 
these claims against."  Id. at 3-4.  Concluding that further amendment would be futile, the 
District Court dismissed the case with prejudice, and declined to exercise supplemental 
jurisdiction over any state law claims.2  Weems appeals.   
We have jurisdiction under 28 U.S.C. § 1291.  We review the District Court’s 
dismissal for failure to state a claim de novo.  See Doe v. Princeton Univ., 30 F.4th 335, 
341 (3d Cir. 2022).  “To survive a motion to dismiss, a complaint must contain sufficient 
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”  
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 
U.S. 544, 570 (2007)).  While we construe pro se filings liberally, see Erickson v. Pardus, 
551 U.S. 89, 94 (2007) (per curiam), Weems’s operative amended complaint must 
contain sufficient facts to support a claim for relief, see Vogt v. Wetzel, 8 F.4th 182, 185 
(3d Cir. 2021).  For the reasons that follow, we will affirm the judgment of the District 
Court.   
 
2 The District Court noted that certain defendants served in connection with the original 
complaint appeared in the documents attached to the amended complaint, but were not 
named in either the caption or body of the amended complaint, as required by the Court.  
The District Court sua sponte dismissed any purported claims against those individuals, 
concluding that it was apparent on the face of the complaint that Weems could not state a 
claim against them.  See D.Ct. ECF No. 126 at 2 n.3.    
 
5 
 
At the outset, we note that we will consider only those issues that Weems has 
raised before this Court.  See M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 
120, 124 n.2 (3d Cir. 2020) (explaining that parties forfeit any argument that they do not 
raise in their opening brief); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 
2013) (noting that pro se litigants “must abide by the same rules that apply to all other 
litigants”).  Here, Weems mostly fails to challenge the reasoning of the District Court.  
The arguments she does make either lack merit or are too conclusory and insufficiently 
developed to bring the issue before this Court.  See Simmons v. City of Philadelphia, 947 
F.2d 1042, 1066 (3d Cir. 1991) (citing Fed. R. App. P. 28, and noting that “a passing 
reference to an issue in a brief will not suffice to bring that issue before this court on 
appeal”).   
Weems first asserts that the District Court “erred in interpreting whom the 
Defendants are,” referencing the City of Philadelphia, CHOP, “all of the rest of the 
defendants listed,” and her “initial complaint.”  3d Cir. ECF No. 27 at 1.  To the extent 
Weems is arguing that the District Court should have considered the defendants in her 
amended complaint to be the same as those listed in her initial complaint, her original 
complaint was superseded by her amended complaint.  See Garrett v. Wexford Health, 
938 F.3d 69, 82 (3d Cir. 2019) (“In general, an amended pleading supersedes the original 
pleading and renders the original pleading a nullity”).  Further, Weems was specifically 
advised to list the defendants both in her caption and in the body of her complaint and she 
failed to do so.  Accordingly, we discern no error in the District Court’s ascertainment of 
the defendants.   
 
6 
 
Next, Weems asserts that the District Court erred in dismissing her claims against 
“Commissioners, Dept Heads, Supervisors and Hospital Presidents” because “they were 
actually accused of not doing anything when they knew or should have known about the 
actions of the employees under their change [sic] of command.”  3d Cir. ECF No. 27 at 1.   
Weems fails to identify any specific defendants or address the District Court’s basis for 
these dismissals.  To the extent Weems is attacking the District Court’s conclusion that 
she failed to establish these unidentified individuals’ personal involvement in the alleged 
wrongs, see D.Ct. ECF No. 101 at 6-7, she has failed to demonstrate any error.  As the 
District Court correctly noted, “liability cannot be ‘predicated solely on the operation of 
respondeat superior.’”  Id. at 6 (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d 
Cir. 1988)).  
Weems next asserts that the statute of limitations should have been tolled as to her 
claims.  See 3d Cir. ECF No. 27 at 2.  However, for the reasons stated by the District 
Court, she provided no basis for equitable tolling.  See D.Ct. ECF No. 126 at 2 n.5.  Her 
references to various criminal statutes of limitation have no bearing on the limitations 
period applicable to her civil claims.  And to the extent Weems attempts to allege 
criminal offenses against any of the defendants, she has no private right of action to 
pursue violations of the criminal statutes.  See generally Alexander v. Sandoval, 532 U.S. 
275, 286 (2001) (“[P]rivate rights of action to enforce federal law must be created by 
Congress”).   
Weems also challenges the District Court’s denial of her motions for the 
appointment of counsel, which we review for abuse of discretion.  See Parham v. 
 
7 
 
Johnson, 126 F.3d 454, 457 (3d Cir. 1997).  While there is no statutory or constitutional 
right to the appointment of counsel in a civil case, see id. at 456-57, a District Court has 
the discretion to appoint counsel “to represent any person unable to afford counsel,” 28 
U.S.C. § 1915(e)(1).  Here, Weems’s application to proceed in forma pauperis was 
denied and she paid the filing fees in the District Court.  She also never submitted an 
application for leave to proceed in forma pauperis for the purpose of appointing counsel.  
As Weems failed to demonstrate an inability to afford counsel, we discern no abuse of 
discretion in the District Court’s denial of her counsel motions.3   
Finally, Weems requests that, if we cannot grant the relief that she seeks, that her 
case “be dismissed without prejudice to allow [her] time to fine [sic] a lawyer who can 
more properly/legally represent my case.”  3d Cir. ECF No. 27 at 4.  Weems has had 
ample time to pursue legal assistance in the approximately nine years since her claims 
first arose.  She is not entitled to the proverbial second bite at the apple, with or without 
the assistance of counsel, after failing to obtain relief.  Her request is denied.   
We will affirm the judgment of the District Court.  
 
 
3 We note that Weems’s first motion for the appointment of counsel was made pursuant 
to 42 U.S.C. § 2000e-5(f)(1), which allows for the appointment of counsel in Title VII 
employment discrimination cases.  As Weems’s civil action did not involve such claims, 
she was not entitled to the appointment of counsel under this section.   


Margo Weems v. City of Philadelphia

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-7-2025 
Garrett Wilson v. Truist Bank 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Garrett Wilson v. Truist Bank" (2025). 2025 Decisions. 538. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/538 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2838 
__________ 
 
GARRETT QUINCY WILSON, 
          Appellant 
 
v. 
 
TRUIST BANK 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:23-cv-03898) 
District Judge:  Honorable Michael M. Baylson 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
April 22, 2025 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed July 7, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 Garrett Wilson appeals pro se from the District Court’s order dismissing his 
amended complaint under Federal Rule of Civil Procedure 8.  We will affirm. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
 In October 2023, Wilson filed a complaint in the District Court against Truist 
Bank.  His complaint contained only one paragraph of facts, which appeared to allege 
that Truist’s repossession of his car violated a host of federal banking, securities, 
criminal, and consumer protection statutes.  The District Court dismissed the complaint, 
without prejudice, under Rule 8 for failure to state sufficient factual allegations to provide 
notice of the basis for his claims.  Wilson then filed an amended complaint which 
vaguely alleged, again in just one paragraph of facts, that Truist “didn’t loan me 
anything,” breached “a fiduciary duty,” “used extortion to coerce payment,” laundered 
money, and “didn’t loan me money” in an “attempt to evade or defeat tax.”  ECF 6 at 3.  
When Wilson later attempted to file a similar second amended complaint, the District 
Court ordered him to file a motion seeking leave of court.  Wilson filed a one-sentence 
motion, which the District Court denied.  The District Court then dismissed Wilson’s 
amended complaint, with prejudice, under Rule 8.  This appeal ensued.   
 We have jurisdiction under 28 U.S.C. § 1291.  We review the dismissal of a 
complaint under Rule 8 for abuse of discretion.  See Garrett v. Wexford Health, 938 F.3d 
69, 91 (3d Cir. 2019).  “Fundamentally, Rule 8 requires that a complaint provide fair 
notice of what the claim is and the grounds upon which it rests.”  Id. at 92 (cleaned up).  
The complaint cannot be “so vague or ambiguous that a defendant cannot reasonably be 
expected to respond to it,” but must “present[] cognizable legal claims to which a 
defendant can respond on the merits.”  Id. at 93–94 (cleaned up); see also Alston v. 
Parker, 363 F.3d 229, 234 (3d Cir. 2004) (applying Rule 8 to a pro se complaint). 
3 
 
 The District Court did not abuse its discretion when it dismissed Wilson’s 
amended complaint under Rule 8, as his complaint was so vague that it did not provide 
“notice of what the claim is and the grounds upon which it rests.”  Garrett, 938 F.3d at 92 
(cleaned up).  The amended complaint did not contain any factual allegations regarding 
how and when Wilson was allegedly injured by Truist’s conduct, and his “[c]onclusory 
allegations of liability are insufficient.”  Id. 
On appeal, Wilson’s two-page brief and one-page reply generally repeat the list of 
federal banking, securities, criminal, and consumer protection statutes that he cited in his 
amended complaint, without pointing to any specific error in the District Court’s 
conclusion that the amended complaint lacked sufficient factual allegations to satisfy 
Rule 8.  See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (discussing forfeiture of 
claims that were not developed in the appellants’ briefing).  To the extent that Wilson has 
developed any argument on appeal, his conclusory citations to those statutes did not 
“present[] cognizable legal claims to which a defendant can respond on the merits.”  
Garrett, 938 F.3d at 94; see also Cent. Bank of Denver, N.A. v. First Interstate Bank of 
Denver, N.A., 511 U.S. 164, 190 (1994) (discussing limitations on inferring a private 
right of action from a criminal statute). 
We also agree with the District Court that Wilson had the opportunity to address 
the pleading deficiencies in his complaint, that he failed to provide grounds to file a 
second amended complaint, and that any further amendment would be futile.  See 
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (explaining 
4 
 
that “[a]mendment of the complaint is futile if the amendment will not cure the 
deficiency in the original complaint or if the amended complaint cannot withstand a 
renewed motion to dismiss”). 
 Accordingly, we will affirm.1 
 
1 Appellant’s motion for discovery is denied. 


Garrett Wilson v. Truist Bank

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-9-2025 
Bezalel Grossberger v. Essex County Superior Court 
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"Bezalel Grossberger v. Essex County Superior Court" (2025). 2025 Decisions. 548. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2089 
__________ 
 
BEZALEL GROSSBERGER, 
   Appellant 
 
v. 
 
NJ SUPERIOR COURT OF ESSEX COUNTY; FAST OIL LLC; ROBERT CORMACK; 
TEVA ENVIRONMENTAL CONSULTANTS LLC  
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:23-cv-03587) 
District Judge:  Honorable Susan D. Wigenton 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 8, 2025 
Before:  BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: July 9, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 Bezalel Grossberger, proceeding pro se, appeals an order sua sponte dismissing his 
amended complaint with prejudice for failure to comply with the requirements of Rule 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
8(a)(1) of the Federal Rules of Civil Procedure, and an order denying his motion for 
reconsideration of that decision.   We will affirm.   
 Grossberger filed a complaint in the United States District Court for the District of 
New Jersey.  Shortly thereafter, the District Court issued a text only order, noting that the 
complaint “contain[ed] text that exceeds the space allotted in the PDF text boxes, does 
not clearly articulate who the defendants are, and does not comply with the directions 
given in the form complaint, particularly those in the ‘Statement of the Claim’ section.”    
The District Court directed Grossberger to fix those deficiencies in an amended 
complaint.  He failed to file an amended complaint, however, and the District Court 
dismissed the original complaint without prejudice, noting that the “facts alleged … are 
insufficient to state a claim upon which relief may be granted because they ‘do not permit 
[this Court] to infer more than the mere possibility’ that Defendants violated his rights.”     
 Next, Grossberger filed an amended complaint, and a motion to reinstate and 
amend the original complaint.  The District Court denied that motion without prejudice, 
noting that the “amended complaint has portions that are incomplete and cutoff[,] which 
prevents this Court from determining what claims are properly before it.”  The District 
Court provided Grossberger with 30 days to file “an appropriate complaint.”   
 Grossberger then filed a second amended complaint, along with over 600 pages of 
exhibits.  The District Court dismissed that complaint with prejudice for failure to 
provide a short and plain statement of the case, as required by Rule 8(a)(1), and for 
failure to adhere to the directives of its two prior orders.  Grossberger filed a timely 
 
3 
 
motion for reconsideration, which the District Court denied.  Grossberger timely 
appealed.   
  We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review for abuse of 
discretion the District Court’s conclusion that Grossberger’s second amended complaint 
failed to comply with the requirements of Rule 8.  See Garrett v. Wexford Health, 938 
F.3d 69, 91 (3d Cir. 2019).  We may affirm on any basis supported by the record.  See 
Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam) 
 To avoid dismissal, “a complaint must contain sufficient factual matter, accepted 
as true, to state a claim to relief that is plausible on its face.”  Talley v. Wetzel, 15 F.4th 
275, 286 n.7 (3d Cir. 2021) (citation and quotation marks omitted); see also Fed. R. Civ. 
P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is 
entitled to relief”).  Whether the “short and plain statement” requirement is satisfied “is a 
context-dependent exercise.”  W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 
85, 98 (3d Cir. 2010).  “Fundamentally, Rule 8 requires that a complaint provide fair 
notice of what the claim is and the grounds upon which it rests.”  Garrett, 938 F.3d at 92 
(cleaned up).  Although we must liberally construe pro se litigants’ pleadings, Rivera v. 
Monko, 37 F.4th 909, 914 (3d Cir. 2022), such litigants “must still allege sufficient facts 
in their complaint to support a claim.”  Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 
245 (3d Cir. 2013).  
Even construing Grossberger’s second amended complaint liberally, we conclude 
that the District Court did not abuse its discretion in holding that he did not meet the 
basic pleading requirements.  See Garrett, 938 F.3d, at 92 (stating that “the question 
 
4 
 
before us is not whether we might have chosen a more lenient course than dismissal … 
but rather whether the District Court abused its discretion in ordering the dismissal”) 
(citation omitted).  It is difficult to discern Grossberger’s claims.  His grievances appear 
to center on Robert M. Cormack, Esq., who allegedly “is denying … [Grossberger] his 
Civil Rights to seek recourse through the [New Jersey] Superior Courts[.]”  Grossberger 
also asserted that Cormack “is engaged in” (1) “‘money laundering’ to defraud the 
Federal Government[,]” (2) “avoiding ‘scrutiny’ and Federal reporting requirements, 
through … cash and delayed/backdated … transactions[,]” (3) “obstructing the Federal 
Government from collecting funds due … through its liens filed at Ocean County[,]” (4) 
“defrauding the Federal Courts … by fictitious Bankruptcy Court and Foreclosure 
proceedings[,]” and defrauding the Federal Government Tax revenues by misrepresenting 
‘Taxable Income’ as ‘loans’ and other such Income frauds … to avoid paying Federal 
Taxes.”  As relief, Grossberger asked that the “action pending in the New Jersey Superior 
Court, Docket No. OCN-L-2333-22 [be] … removed to this Court.”1     
These allegations simply do not add up to the kind of information necessary to 
satisfy Rule 8 or state a plausible claim for relief.  Indeed, Grossberger failed to connect 
his vague allegations to any facts demonstrating that Cormack may be liable for 
 
1 We take judicial notice that Grossberger previously attempted to remove that action to 
the United States District Court for the District of New Jersey.  See Sands v. McCormick, 
502 F.3d 263, 268 (3d Cir. 2007) (recognizing that courts may take judicial notice of 
matters of public record, including judicial proceedings).  The District Court granted 
Cormack’s motion for remand, explaining that the action “was improperly removed to 
this Court because [Grossberger] is not a defendant in the removed state action.”  
Grossberger appealed and we affirmed.  Grossberger v. Cormack, C.A. No. 24-2665 
(order entered Dec. 4, 2024). 
 
5 
 
misconduct.  See Garrett, 938 F.3d at 94 (explaining dismissal is proper where complaint 
is “so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if 
any, is well disguised” (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)); 
see also Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007) (explaining that it is 
not a “district court’s job to stitch together cognizable claims for relief from [a] wholly 
deficient pleading”).  And although Grossberger attached over 600 pages of exhibits to 
his second amended complaint, he did not explain how any of that material relates to his 
allegations.  Cf. DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (“A brief must 
make all arguments accessible to the judges, rather than ask them to play archaeologist 
with the record.”).  Finally, to the extent that Grossberger challenges the denial of his 
motion for reconsideration, we discern no abuse of discretion, as that motion failed to 
allege “(1) an intervening change in the controlling law; (2) the availability of new 
evidence that was not available . . .; or (3) the need to correct a clear error of law or fact 
or to prevent manifest injustice.”  Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 
176 F.3d 669, 677 (3d Cir. 1999). 
For the foregoing reasons, we will affirm the judgment of the District Court. 
 


Bezalel Grossberger v. Essex County Superior Court

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-9-2025 
Gary Calderwood v. Carl Rinsch 
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"Gary Calderwood v. Carl Rinsch" (2025). 2025 Decisions. 550. 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 23-2653 
_______________ 
GARY D. CALDERWOOD, 
d/b/a Calderwood Gallery, 
Appellant 
v. 
CARL ERIK RINSCH 
_______________ 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cv-02847)
District Judge: Honorable Juan R. Sanchez 
_______________ 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
March 14, 2025 
Before: SHWARTZ, KRAUSE and CHUNG, Circuit Judges
(Filed: July 9, 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 
 
KRAUSE, Circuit Judge. 
A jury found Appellee Carl Rinsch liable for breach of contract and returned a 
verdict in favor of Appellant Gary Calderwood, listing damages of $268,200.  
Interpreting that number to include the $200,000 that Rinsch had already paid, the 
District Court entered judgment awarding Calderwood the remaining $68,200.  
Calderwood now appeals that decision.  Because we conclude that the Court properly 
interpreted the verdict form, we will affirm.   
I. BACKGROUND 
In September 2021, Rinsch contacted Calderwood—an owner of a high-end 
furniture store—expressing interest in buying a designer collection.  Over several 
months, the parties exchanged price lists and invoices and whittled down the terms of 
sale.  By January 31, 2022, the invoice reflected a $268,200 charge, in exchange for 14 
pieces of furniture.  At that point, Rinsch had already paid $200,000, leaving a $68,200 
balance.  But instead of completing his purchase, Rinsch walked away.  Calderwood sued 
for breach of contract, and Rinsch brought a counterclaim for unjust enrichment, seeking 
the return of his $200,000.  
Both the claim for entitlement to the full contract price and the counterclaim for 
return of Rinsch’s $200,000 were submitted to the jury.  After a two-day trial, the jury 
returned a verdict for Calderwood, stating on the verdict form that “the total amount of 
damages owed to Mr. Calderwood as a result of Mr. Rinsch’s breach of contract” was 
$268,200, App. 103, and that “Mr. Calderwood is [not] liable . . . to return the $200,000” 
under an unjust enrichment theory, id. at 104.  The District Court thus did not order 
 
3 
 
Calderwood’s disgorgement of the $200,000 he had already received and, instead, 
entered a judgment of $68,200, covering the balance that Rinsch still owed.  Calderwood 
timely appealed.1  
II. DISCUSSION2 
Calderwood argues on appeal that the jury verdict unambiguously demonstrates 
that the jury intended to award him $268,200 not as a sum total—i.e., the $200,000 he 
was permitted to retain plus the $68,200 balance the judge ordered Rinsch to pay—but 
rather as a supplement to be combined with the $200,000 in his possession, for a sum 
total of $468,200.  Under that view, the District Court’s order requiring Rinsch to pay 
only an additional $68,200 disturbed the jury verdict and reduced damages by $200,000.  
Like the District Court, we read the verdict form differently, and we perceive no error. 
A district court may constitutionally enter judgment “without regard to any 
imperfection or want of form in the verdict” if the verdict nonetheless “clearly manifests 
the intention and finding of the jury upon the issue submitted to them.”  Smyth Sales v. 
Petroleum Heat & Power Co., 141 F.2d 41, 44 (3d Cir. 1944).  When faced with an 
ambiguous verdict form, we must decide whether the District Court interpreted it “in a 
manner which reconciles [it] with the jurors’ probable intention in light of the Court’s 
 
1 Rinsch filed a pro se cross-appeal, which we dismissed for failure to prosecute. 
Calderwood v. Rinsch, No. 24-1286, 2024 WL 3811397, at *1 (3d Cir. Apr. 26, 2024). 
2 The District Court had jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction 
under 28 U.S.C. § 1291. 
 
4 
 
instructions.”  Scott v. Plante, 641 F.2d 117, 125 (3d Cir. 1981), vacated on other 
grounds, 458 U.S. 1101 (1982).  Our review of that interpretation is plenary.3   
Here, the District Court ably performed its task.  The Court interpreted the verdict 
to reflect the jury’s “clearly manifested” intent to make Calderwood whole for breach of 
the January 31 agreement.  App. 2 (quotation omitted).  This interpretation reconciles the 
verdict with the jurors’ intention because the jury was instructed to “put Mr. Calderwood 
in the position he would have been if Mr. Rinsch had not breached the contract.”  App. 
367.  And, as the Court recognized, “[i]t is . . . clear that the jurors found the operative 
contract breached by Rinsch was the one created on January 31, 2022, for 14 pieces of 
furniture in exchange for $268,200, as the number 68,200 appears nowhere else in the 
record.”  App. 2.   
 
3 We review interpretation of a verdict sheet de novo.  See Jama v. Esmor Corr. Servs., 
Inc., 577 F.3d 169, 173 (3d Cir. 2009); Failla v. City of Passaic, 146 F.3d 149, 153 (3d 
Cir. 1998).  The District Court, here, referred to its interpretive exercise as “molding” the 
verdict.  “Molding” typically refers to a district court crafting a judgment by harmonizing 
the jury’s seemingly inconsistent responses to interrogatories.  See, e.g., Loughman v. 
Consol-Pennsylvania Coal Co., 6 F.3d 88, 104–05 (3d Cir. 1993); McAdam v. Dean 
Witter Reynolds, Inc., 896 F.2d 750, 763–64 (3d Cir. 1990); Bradford-White Corp. v. 
Ernst & Whinney, 872 F.2d 1153, 1159 (3d Cir. 1989).  When there are no 
inconsistencies, however, the district court is merely tasked with interpreting, rather than 
molding, the verdict.  See Jama, 577 F.3d at 174.  Here, as we see no inconsistency in the 
jury’s answers, we recognize the District Court’s action as interpreting instead of 
molding.  Regardless, we see no error in the District Court’s judgment.  We note that 
these issues may arise in the context of a Rule 59 motion for a new trial or to alter or 
amend a judgment.  We review the disposition of such motions “for abuse of discretion, 
except over matters of law”—such as the interpretation of a verdict form—“which are 
subject to plenary review.”  Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 
(3d Cir. 2001) (discussing motion to alter or amend judgment); see Bradford-White 
Corp., 872 F.2d at 1158–59 (discussing motion for new trial).   
 
5 
 
Calderwood on the other hand, would have us over-read the verdict to mean he is 
entitled not just to what the jury awarded him on his claim, but also what the jury 
declined to award Rinsch on his counterclaim.  Like the District Court, we cannot say a 
sum total of $468,200 was the jury’s intention where “nothing in the record suggest[s] 
that there was, at any time, an agreement for $468,200.”  Id. at 3.  Instead, the verdict 
sheet—however imperfectly expressed—“clearly manifests” the jury’s intent to find that 
Rinsch breached a contract worth $268,200, is not entitled to the return of his $200,000 
deposit, and must pay the remaining balance of $68,200.  Smyth Sales, 141 F.2d at 44.  
As such, the District Court did not disturb, but rather implemented, the jury’s verdict.   
III. CONCLUSION 
For the foregoing reasons, we will affirm the District Court’s judgment. 


Gary  Calderwood v. Carl Rinsch

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-9-2025 
USA v. Brent Galletta 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Brent Galletta" (2025). 2025 Decisions. 551. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/551 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
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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. 23-2403 
 
 ______________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
BRENT S. GALLETTA, 
 
                Appellant  
______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 5:14-cr-00603-001) 
U.S. District Judge:  Honorable Edward G. Smith 
_____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
July 8, 2025 
______________ 
 
Before: SHWARTZ, FREEMAN, and RENDELL, Circuit Judges. 
 
(Filed: July 9, 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 
 
SHWARTZ, Circuit Judge. 
Brent Galletta appeals the order denying his 28 U.S.C. § 2255 motion asserting he 
was denied effective assistance of counsel because his counsel did not file a suppression 
motion.  Because the motion would have failed, his counsel was not ineffective for not 
filing it and so we will affirm. 
I 
A1 
 Galletta posted an online ad entitled “Pervy Dads—m4m—34(Mall),” seeking 
fathers who are “pervy and like[] taboo stuff,” and an undercover agent posing as a father 
of a young son and daughter responded.  App. 293-94.  Through electronic messages with 
the agent, Galletta (1) expressed sexual interest in the agent’s “children” and told the 
agent he was into “younger girls,” including the child of a former paramour, (2) “asked 
for a picture of [the undercover agent] and [the] two children,” and (3) sent a picture of 
himself.  App. 294-95.  After the agent and Galletta made plans to meet and Galletta 
described the sexual activity he wanted to engage in with the “daughter,” App. 295, the 
agent asked Galletta, “u planning on take [sic] any pics?  My only rule is I don’t want 
them all over the internet,” and Galletta responded, “sure and ok.”  App. 295.  Galletta 
asked the agent to confirm that no one else would be home and “if he should bring a 
laptop computer.”  App. 295.  When the agent asked Galletta if he wanted “[the daughter] 
in anything,” Galletta said she should wear a “bikini.”  App. 295. 
 
1 We recite the facts as set forth in the affidavit submitted in support of the search 
warrant. 
3 
 
Galletta was arrested when he arrived for the meeting.  Galletta told law 
enforcement that he had previously been arrested “for the same thing,” and a criminal 
history search confirmed two charges for corruption of a minor.  App. 295.  He also 
acknowledged he used a cellular device to communicate, and an officer saw a cell phone 
in Galletta’s car.    
Law enforcement obtained a warrant to search Galletta’s car for “computer 
hardware” including “[a]ny mobile devices such as cellular phones,” which might contain 
child pornography or other evidence relating to its possession and dissemination.  App. 
291-92.  The affidavit filed in support of the warrant described the electronic 
communications Galletta had with the agent and his post-arrest statements.  The search of 
the phone revealed the messages between Galletta and the undercover agent, child 
pornography and “child erotica” images, Suppl. App. 125, as well as surreptitiously 
recorded videos of children with suggestive content.  
B 
 Galletta was indicted for (1) enticement of a minor in violation of 18 U.S.C. 
§ 2422(b); (2) transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1); 
and (3) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).  
Galletta’s trial counsel did not challenge the search warrant, despite Galleta “begg[ing] 
him” to do so.  Suppl. App. 455.  At trial, the jury was shown, among other things, child 
pornography and other images found on Galletta’s phone.  A jury found him guilty of all 
charges and he was sentenced to 600 months’ imprisonment with lifetime supervised 
release. 
4 
 
 After unsuccessfully challenging his conviction on direct appeal, United States v. 
Galletta, 662 F. App’x 190, 191 (3d Cir. 2016) (not precedential), Galletta filed a § 2255 
motion attacking his conviction on several grounds.  Relevant here, Galletta argued that 
his trial counsel was ineffective because competent counsel would have moved to 
suppress the evidence found on his phone because the warrant to search for child 
pornography lacked probable cause and the good faith exception did not apply.  He 
asserts that, had his counsel filed this motion, the fruits of this search would have been 
suppressed and he would not have been convicted.   
 The District Court denied Galletta’s motion, concluding that any suppression 
motion would have failed because the search warrant was supported by probable cause 
and, even if it had not been, the good faith exception applied, and thus counsel was not 
ineffective for not filing the motion.  United States v. Galletta, No. 14-cr-603, 2023 WL 
4565477, at *72, *75-76 (E.D. Pa. July 17, 2023).   
Galletta appealed, and we issued a certificate of appealability.2   
II3 
To prove ineffective assistance of counsel, a defendant must show that 
(1) “counsel’s performance was deficient,” and (2) the defendant suffered prejudice 
 
2 Although Galletta filed a notice of appeal of the entire order denying him § 2255 
relief, we granted a certificate of appealability on only “whether trial counsel [was] 
ineffective for failing to file a motion to suppress the evidence of child pornography 
seized from the mobile phone.”  Order at 1, United States v. Galletta, No. 23-2403, (3d 
Cir. Feb. 28, 2024), ECF No. 11.   
3 The District Court had jurisdiction pursuant to 28 U.S.C. § 2255.  We have 
jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), and 2255(d). When reviewing an 
 
5 
 
because of the deficiency.4  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).  
We need not address the first prong of Strickland’s conjunctive test because Galletta’s 
argument fails on the second.  As explained herein, he suffered no prejudice because, 
even if probable cause were lacking, the suppression motion would have been denied 
under the good faith exception to the exclusionary rule.   
The good faith exception precludes suppressing evidence “where officers act in 
‘good faith’ or ‘objectively reasonable reliance’ on a search warrant later held to be 
defective.”  United States v. Caesar, 2 F.4th 160, 169 (3d Cir. 2021) (quoting United 
States v. Leon, 468 U.S. 897, 922 (1984)).  The existence of “a warrant issued by a 
magistrate normally suffices to establish that a law enforcement officer has acted in good 
faith in conducting the search,” United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir. 
2002) (internal quotation marks omitted), and typically “will obviate the need for any 
deep inquiry into [the] reasonableness of the officer’s reliance on the warrant,” Caesar, 2 
F.4th at 170 (alteration in original) (internal quotation marks omitted).  The good faith 
exception does not apply, however, when the affidavit is “so lacking in indicia of 
probable cause as to render official belief in its existence entirely unreasonable.”  United 
States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999) (quoting Leon, 468 U.S. at 923).   
 
order denying a § 2255 motion, we review legal conclusions de novo and factual findings 
for clear error.  Ellison v. United States, 120 F.4th 338, 343 n.5 (3d Cir. 2024), cert. 
denied, No. 24-1032, 2025 WL 1211802 (U.S. Apr. 28, 2025).  Our review of the District 
Court’s conclusion that the good faith exception applies is plenary.  See United States v. 
Williams, 3 F.3d 69, 71 n.2 (3d Cir. 1993).   
4 A defendant shows prejudice by demonstrating a reasonable probability that, but 
for counsel’s errors, the result of the proceeding would have been different.  Strickland v. 
Washington, 466 U.S. 668, 694 (1984).    
6 
 
The District Court correctly concluded that the good faith exception applies.  The 
affidavit contained facts supporting an inference that Galletta intended to sexually abuse 
and take pornographic photographs of the agent’s “daughter,” and that he might have 
child pornography on his cellular device.  Among other things, Galletta told the agent that 
he had a sexual interest in children and even left the bedroom he shared with his former 
paramour to watch her young daughter sleep, asked for photographs of the agent’s 
“children,” indicated that he intended to take photographs of the “daughter,” who he 
requested wear a bikini, confirmed that no one else would be home during the meeting 
with the agent and his “daughter,” and acknowledged using his cell phone, which officers 
saw in his car.  Further, both the affiant and the undercover agent had knowledge and 
training in “the possession, receipt, and transmission of child pornography.”  App. 293; 
see Caesar, 2 F.4th at 177-78 (applying the good faith exception where an officer “clearly 
attempted to support his belief in the molestation-pornography nexus by reciting his 
lengthy experience conducting criminal investigations and the extensive list of 
investigative training courses he had completed”)  Because the affidavit “set forth several 
facts tending to show” Galletta had an interest in taking photographs of the agent’s  
“daughter” with whom he expressed an interest in engaging in sexual acts, it is 
reasonable to infer that he may possess other images of child pornography on his cell 
phone and thus, law enforcement’s reliance on the search warrant was in good faith.5  See 
 
5 Galletta relies on (1) Virgin Islands v. John, where we concluded that an officer 
did not rely on a search warrant in good faith where the accompanying affidavit alleged 
that an individual molested minors at school, 654 F.3d 412, 422 (3d Cir. 2011); and (2) 
 
7 
 
Caesar, 2 F.4th at 166, 174, 178 (holding good faith exception applied where affiant 
stated that defendant’s statements revealed his sexual interest in children and photographs 
of children in undergarments and, based on the officer’s experience, sexual abusers 
“routinely and commonly” possess child pornography).  
Because the motion to suppress would have failed, counsel’s decision not to file 
such a motion did not prejudice Galletta.  Therefore, the District Court did not err in 
denying Galletta’s § 2255 motion.   
III 
For the foregoing reasons, we will affirm. 
 
United States v. Hodson, where the Court of Appeals for the Sixth Circuit held that an 
officer unreasonably relied on a warrant to search an individual’s home for child 
pornography where the probable cause affidavit featured the defendant’s online 
communications evidencing child molestation, 543 F.3d 286, 289, 293 (6th Cir. 2008).  
However, the affidavits in those cases contained allegations related solely to child 
molestation and did not provide reason to believe the defendant possessed child 
pornography.  See John, 654 F.3d at 419 (holding that the affiant failed to allege a 
“connection” between the defendant’s child molestation and possession of child 
pornography); Hodson, 543 F.3d at 293-94 (holding that it was “unreasonable” to infer 
without supporting evidence a child molester is likely to possess child pornography).  
Here, the probable cause affidavit’s allegations demonstrated Galletta’s interest in sexual 
images of children.   


USA v. Brent Galletta

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-25-2025 
USA v. Marcello Whyte 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Marcello Whyte" (2025). 2025 Decisions. 594. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/594 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
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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. 
BLD-147        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1538 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
MARCELLO WHYTE, 
   Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Criminal Action No. 1:17-cr-00045-001) 
District Judge:  Honorable Jennifer P. Wilson 
____________________________________ 
 
Submitted for Possible Summary Action 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
May 15, 2025 
Before:  SHWARTZ, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: July 25, 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 
 
 Marcello Whyte appeals from the order of the United States District Court for the 
Middle District of Pennsylvania denying his motion for sentencing relief under 18 U.S.C. 
§ 3582(c)(2).  We will summarily affirm. 
 Whyte pled guilty in January 2019 to a single count of interstate travel in aid of 
drug trafficking in violation of 18 U.S.C. § 1952.  He subsequently absconded, avoiding 
apprehension until March 2024.  At his sentencing hearing that August, Whyte, through 
counsel, objected to the presentence report for adding two criminal history points (for a 
total of eight) because he committed his offense while on supervision for a prior 
conviction.  Whyte grounded his objection in an amendment to the United States 
Sentencing Guidelines that took effect in November 2023; that amendment eliminated 
both “status points” for offenders who otherwise had fewer than seven criminal history 
points.  See U.S. SENTENCING COMM’N, Amendment 821, available at 
https://www.ussc.gov/guidelines/amendment/821. 
The District Court overruled Whyte’s objection.  Given the length of time that had 
elapsed since Whyte’s guilty plea—during which the Sentencing Guidelines underwent 
certain revisions that would have subjected him to a higher guideline range as a career 
offender—the court explained that, to avoid an ex post facto violation, Whyte’s advisory 
range would be calculated using the guidelines manual in effect when he committed his 
offense in 2016, which predated Amendment 821.  The court sentenced Whyte to 60 
months’ imprisonment, the top of his guideline range and the statutory maximum for his 
offense.  Whyte did not appeal.  Instead, he filed a pro se motion to reduce his sentence 
under Section 3582(c)(2) and Amendment 821.  The District Court denied his motion for 
3 
 
the reasons stated at sentencing.  Whyte appeals, and the United States has timely moved 
for summary affirmance and to stay issuance of the briefing schedule. 
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we generally review a 
District Court’s denial of relief under Section 3582(c)(2) for abuse of discretion.  United 
States v. Thompson, 825 F.3d 198, 203 (3d Cir. 2016).  We may summarily affirm the 
District Court’s decision if the appeal fails to present a substantial question.  See 3d Cir. 
L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 
 Whyte’s appeal does not present a substantial question.  Section 3582(c)(2) 
authorizes District Courts to reduce a defendant’s sentence if the defendant “had been 
sentenced to a term of imprisonment based on a sentencing range that has subsequently 
been lowered by the [United States] Sentencing Commission.”  18 U.S.C. § 3582(c)(2) 
(emphasis added).  That Whyte was sentenced using a guidelines manual that predated 
Amendment 821 is of no moment.  He is ineligible for retroactive relief under that 
amendment and Section 3582(c)(2) because he was sentenced in August 2024—nearly 
one year after the amendment took effect.  Whyte could have challenged his sentence on 
direct appeal, see 18 U.S.C. § 3742(a), but he did not.  We grant the government’s motion 
and will summarily affirm the District Court’s order denying sentencing relief. 
 


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