Marsalis v. Tewalt

Filing 10

INITIAL REVIEW ORDER - IT IS ORDERED: Petitioner's Application for in Forma Pauperis Status (Dkt. 1 ) is DENIED without prejudice. Petitioner must pay the $5.00 filing fee within 21 days after entry of this Order. Petitioner's Motion for Appointment of Counsel (Dkt. 6 ) is DENIED without prejudice. The Clerk of Court shall serve (via ECF) a copy of the Petition (Dkt. 3 ), together with a copy of this Order, on L. LaMont Anderson, on behalf of Respondents, at Mr. Anderson's registered ECF address.Signed by US Magistrate Judge Raymond Edward Patricco, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JEFFREY J. MARSALIS,
Petitioner,
vs.

Case No. 1:24-cv-00403-REP
INITIAL REVIEW ORDER

JOSH TEWALT,
Respondent.

Petitioner Jeffrey J. Marsalis (Petitioner) has filed a Petition for Writ of Habeas
Corpus challenging his Idaho state court conviction. Dkt. 3. When he filed his Petition, he
was in legal and physical custody of the Commonwealth of Pennsylvania on an unrelated
conviction that preceded his Idaho conviction. The Pennsylvania conviction is not at
issue here. He now is housed in a Florida federal facility, which is also not at issue here.
Federal habeas corpus relief is available to petitioners who are held in custody
under a state court judgment that violates the Constitution, laws, or treaties of the United
States. See 28 U.S.C. § 2254(a). The Court is required to review each newly-filed habeas
corpus petition to determine whether it should be served upon the respondent, amended,
or summarily dismissed. See 28 U.S.C. § 2243. If “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district

INITIAL REVIEW ORDER - 1

court,” the petition will be summarily dismissed. Rule 4 of the Rules Governing Section
2254 Cases.
Having reviewed the Petition, the Court concludes that Petitioner may proceed to
the next stage of litigation in this matter.
REVIEW OF PETITION
1. Background
Petitioner was convicted by jury of one count of rape in Blaine County in 2009.
The prosecution contended that Petitioner had nonconsensual sex with the victim when
she was drunk and incapable of giving consent. Petitioner defended on grounds that the
victim had consented.
Petitioner filed a direct appeal, and then a post-conviction action. After summary
dismissal of the post-conviction action in 2017, the Idaho Supreme Court reversed the
decision in 2020 and required the state district court to hold an evidentiary hearing. The
state district court did so in 2021, and denied the post-conviction application a second
time in 2022. On appeal, the Idaho Supreme Court affirmed denial of post-conviction
relief in 2024. See Petition, Dkt. 3 at 2-4.
2. Discussion
In the Petition for Writ of Habeas Corpus, Petitioner assets the following claims:
(1) denial of the Sixth Amendment right to testify.
(2) (a) ineffective assistance of counsel (IAC) for failing to
challenge the testimony of expert witness Marc LeBeau regarding
INITIAL REVIEW ORDER - 2

Petitioner’s and the victim’s blood alcohol concentration; (b) IAC
for failing to call witness John Hampton to testify at trial; (c) IAC
for failing to advise Petitioner of the speedy trial deadline of 120
days under the detainer statute and of the remedy for its breach
(dismissal of the criminal charge with prejudice); and (d) that the
aggregate of these IAC claims warrants relief.
(3) that the State obtained a grand jury indictment by knowingly
presenting false testimony to the grand jury, violating Petitioner’s
Fourteenth Amendment right to due process.
Dkt. 3 at 5-13.
Claim 1, denial of the right to testify, appears to be procedurally defaulted.
Petitioner asserts that the exception established in Martinez v. Ryan, 566 U.S. 1 (2012),
may apply to excuse the default of this claim. However, that exception applies only to
ineffective assistance of trial counsel claims. See Hunton v. Sinclair, 732 F.3d 1124 (9th
Cir. 2013) (Martinez not applicable to a defaulted Brady claim).
As pleaded, the claim is brought as a stand-alone claim of the court’s denial of the
right to testify. If Petitioner desires to also raise the claim as an ineffective assistance of
counsel claim, he may file an amended petition. The claim brought under either theory
appears to be procedurally defaulted, but the Martinez v. Ryan exception can be applied
only to the ineffective assistance version, which has not been raised in the Petition.
3. In Forma Pauperis Application and Request for Appointment of Counsel
Petitioner has requested that the Court appoint counsel for him (Dkt. 6), but,
presently, he does not qualify for in forma pauperis status. Title 28 U.S.C. § 2254(h)
provides that “the court may appoint counsel for an applicant who is or becomes
INITIAL REVIEW ORDER - 3

financially unable to afford counsel.” Petitioner consistently has over $2,000.00 in his
prison trust account each month, and had accrued as much as $2,633.33 in his account as
recent as May 2024. See Dkt. 2. His Application states that he received $700.00 from his
family members over the past six months and earns $63.00 a month as a tutor, but that
does not account for the rest of the money in his account. This is a discrepancy that has
not been explained by Petitioner. Even with the discrepancy, his account balance shows
that Petitioner is not a pauper, given that his necessities of life are paid by the taxpayers.
He may be able to seek counsel on a payment plan at his own expense. Petitioner will be
required to pay the $5.00 filing fee within 21 days after entry of this Order.
The Court notes that the Federal Defenders Capital Habeas Unit (CHU) attorneys
have informed the Clerk that they will agree to represent Petitioner in this case if the
Court will appoint them. If, in the future, Petitioner becomes a pauper and he can explain
the discrepancy between his prison trust statements and his application, the Court may
appoint the CHU to represent him, to the extent that the Federal Defenders are able to do
so within their current budget and time restrictions, and do not require appointment of
additional paid pro hac vice counsel. Or, if counsel are aware of another provision of law
that would permit their appointment, Plaintiff may provide that in a new motion. These
are somewhat uncharted waters, and Petitioner is free to suggest any lawful options he
may find.

INITIAL REVIEW ORDER - 4

ORDER
IT IS ORDERED:
1. Petitioner’s Application for in Forma Pauperis Status (Dkt. 1) is DENIED without
prejudice. Petitioner must pay the $5.00 filing fee within 21 days after entry of
this Order.
2. Petitioner’s Motion for Appointment of Counsel (Dkt. 6) is DENIED without
prejudice.
3. If Petitioner’s financial circumstances have substantially changed, he may file a
new in forma pauperis application and new request for appointment of counsel.
4. The Clerk of Court shall serve (via ECF) a copy of the Petition (Dkt. 3), together
with a copy of this Order, on L. LaMont Anderson, on behalf of Respondents, at
Mr. Anderson’s registered ECF address.
5. Within 120 days after entry of this Order, Respondent shall have the option of
filing either of the following: (1) a motion for summary dismissal or partial
summary dismissal on procedural grounds (which may be followed by an answer
if the motion is unsuccessful); or (2) an answer and brief on the claims that were
adjudicated on the merits by the Idaho Supreme Court, that also includes a brief
summary (between one paragraph and several pages) of any procedural defenses
for any claims (which may be argued in the alternative).

INITIAL REVIEW ORDER - 5

6. Respondents shall file with the responsive pleading or motion, or within a
reasonable time period thereafter, a copy of all portions of the state court record
previously transcribed that are relevant to a determination of the issues presented.
Any presentence investigation reports or evaluations shall be filed under seal. The
lodging of the remainder of the state court record, to the extent that it is lodged in
paper format, is exempt from the redaction requirements, as provided in District of
Idaho Local Civil Rule 5.5(c).
7. If the response to the habeas petition is an answer, Petitioner shall prepare a reply
(formerly called a traverse), containing a brief rebutting Respondents’ answer and
brief, which shall be filed and served within 30 days after service of the answer.
Respondent has the option of filing a sur-reply within 14 days after service of the
reply. At that point, the case shall be deemed ready for a final decision.
8. If the response to the habeas petition is a motion, Petitioner’s response to the
motion shall be filed and served within 30 days after service of the motion, and
Respondents’ reply, if any, shall be filed and served within 14 days thereafter.
9. No party shall file supplemental responses, replies, affidavits or other documents
not expressly authorized by the Local Rules without first obtaining leave of Court.
10. No discovery shall be undertaken in this matter unless a party obtains prior leave
of Court, pursuant to Rule 6 of the Rules Governing Section 2254 Cases.

INITIAL REVIEW ORDER - 6

11. The parties may, but need not, file the following in this matter: (1) notices of nonobjections to motions to which they do not object; (2) responses to motions for
appointment of counsel; (3) responses to motions that are meritless, frivolous, or
filed in contravention of this Order; or (4) notices of intent not to file a reply. If
additional briefing is required on any issue, the Court will order it.
12. Each party shall ensure that all documents filed with the Court are simultaneously
served via the ECF system or by first-class mail upon the opposing party (through
counsel if the party has counsel), pursuant to Federal Rule of Civil Procedure 5.
Each party shall sign and attach a proper mailing certificate to each document filed
with the court, showing the manner of service, date of service, address of service,
and name of the person upon whom service was made, or as specified by the
applicable ECF rules. The Court will not consider ex parte requests unless a
motion may be heard ex parte according to the rules and the motion is clearly
identified as requesting an ex parte order, pursuant to Local Rule 7.2. (“Ex parte”
means that a party has provided a document to the court, but that the party did not
provide a copy of the document to the other party to the litigation.)
13. All Court filings requesting relief or requesting that the Court make a ruling or
take an action of any kind must be in the form of a pleading or motion, with an
appropriate caption designating the name of the pleading or motion, served on all
parties to the litigation, pursuant to Federal Rules of Civil Procedure 7, 10 and 11,

INITIAL REVIEW ORDER - 7

and Local Rules 5.2 and 7.1. The Court will not consider requests made in the
form of letters.
14. Petitioner shall at all times keep the Court and Respondent advised of any changes
in address.
15. If Petitioner’s custodian changes at any point during this litigation, counsel for
Respondents shall file a Notice of Substitution of Respondent within 30 days of
such change, identifying the person who is substituted as a Respondent. See Fed.
R. Civ. P. 25(d); Rule 2(a) of the Rules Governing Section 2254 Cases.

DATED: January 29, 2025

________________________
Honorable Raymond E. Patricco
Chief U.S. Magistrate Judge

INITIAL REVIEW ORDER - 8