Frank Marsh, Jr. v. Attorney General New Jersey

• Court: Court of Appeals for the Third Circuit
• Decided: March 28, 2025
• Docket: 23-3123
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 23-3123 ________________

FRANK L. MARSH, JR., Appellant

v.

ATTORNEY GENERAL NEW JERSEY _____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3:19-cv-15440) District Judge: Honorable Georgette Castner ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on November 5, 2024

Before: KRAUSE, SCIRICA, and RENDELL, Circuit Judges.

(Filed: March 28, 2025)

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge

Frank Marsh appeals the District Court’s order denying his petition for a writ of

habeas corpus, claiming prosecutorial misconduct, ineffective assistance of counsel, and

cumulative error. Because the District Court properly deferred to the state court’s legal

determination, we will affirm.

I.1

Marsh was sentenced to life in prison following his convictions in New Jersey

state court for first-degree murder for hire, possession of a weapon for an unlawful

purpose, and unlawful possession of a weapon. Marsh was convicted for committing the

murder at the behest of Raymond Troxell, who has been separately convicted. At trial,

jurors heard from Kissel, a friend of Marsh and Troxell, who testified that he observed

arrangements made for the murder for hire, that Marsh confessed to the murder, and that,

while watching football with Marsh and Troxell, he saw Troxell walking over to Marsh

with cash in hand. Jurors also heard testimony from a firearms expert that an American

Derringer was one of the types of handguns that could have served as the murder weapon

and that Marsh owned such a firearm, but it was missing and only an empty case for the

1 We will set forth only those facts necessary to our analysis because we write principally for those familiar with the factual context and legal history of this case—the parties. We also emphasize a prosecutor’s “chief business is not to achieve victory but to establish justice.” Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963) (citation omitted). The prosecutor acts as a “servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” United States v. Agurs, 427 U.S. 97, 111 (1976) (citation omitted). “He may prosecute with earnestness and vigor . . . . But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935). As we outline the facts, we remind the Middlesex County Prosecutor’s Office that these high principles should be top-of-mind for any government attorney. 2 weapon was found in his home. Jurors were also presented with cell phone location data

that seemingly contradicted Marsh’s alibi for the murder.

Marsh owned several rifles and handguns. The trial judge issued an instruction

that discussion of Marsh’s gun ownership may be used only for the “very limited

purpose” of demonstrating Marsh’s familiarity with firearms and to link the missing

Derringer to Marsh but not for demonstrating criminal propensity. RSA 863–65.

Nevertheless, the prosecutor here frequently referenced Marsh’s gun ownership long after

the trial judge had determined that testimony was sufficient for this limited purpose and

instructed the prosecutor to move on. The prosecutor also placed Marsh’s weapons and

corresponding ammunition in plain view and “paraded [them] in front of the jury” despite

the judge’s frequent instructions to “[p]ut the rifle down and move on.” RSA 1007, 1051.

The trial court noted that: “[I]t is the Court’s perception that [the prosecutor] did

absolutely, deliberately disregard my instructions and continue to go back to the area of

firearms.” RSA 1346.

The prosecutor also frequently referenced Marsh’s familiarity using weapons

while hunting and asked whether animals he hunted “require a lot of patience in order to

kill.” RSA 1007. The trial judge reprimanded counsel, noting “[h]unting has nothing to

do with this trial” and instructed counsel to move on. RSA 1008. The prosecutor ignored

this instruction and continued to reference Marsh’s affinity for hunting and his lying in

wait before shooting animals. On this issue, the trial court lamented that:

With reference to the hunting. The Court does not see the use of somebody’s hunting as an analogy to laying in wait for somebody. . . . To focus, as the State has, on the lying in wait and the number of weapons and

3 the type of weapons is nothing more in the Court’s mind than a deliberate attempt to have the jury focus on a minor portion of the case as opposed to the evidence the State has. And it’s being done deliberately.

RSA 1049–50.

In addition to sustaining various objections to the prosecutor’s actions, the trial

court issued a limiting instruction to the jury prior to the deliberation:

You may not, may not use this evidence [of firearms] to conclude that [defendant] Marsh has a tendency to commit crimes or that just because he owns weapons, both long rifles and handguns, he must be guilty or, for that matter, is more likely to be guilty . . . . Similarly, the issue of hunting may not be used, may not be used to infer that he’s more likely to commit this offense.

The defendant’s [Marsh’s] hunting, the possession of weapons in Pennsylvania is and was a lawful activity. To the extent that he may have special skill or training specific to hunting, that may be considered by you.

RSA 1260. The jury convicted Marsh of first-degree murder for hire, possession of a

weapon for an unlawful purpose, and unlawful possession of a weapon.

Marsh appealed to the New Jersey Superior Court, Appellate Division, challenging

the references to Marsh’s gun ownership and arguing cumulative error. The conviction

and sentence were affirmed. The New Jersey Supreme Court denied certification of the

appeal without discussion. Marsh then filed for post-conviction relief, which the

Superior Court denied. The New Jersey Superior Court, Appellate Division affirmed,

and the New Jersey Supreme Court denied certification.

Petitioner filed a writ of habeas corpus in federal district court, which was denied.

The District Court issued a certificate of appealability on Petitioner’s claims of

prosecutorial misconduct, ineffective assistance of counsel, and cumulative error. This

4 timely appeal followed.

II.2

Where state courts address a claim on the merits, our review is limited by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241–

2254.3 AEDPA restricts a federal court’s power to grant a writ of habeas corpus when a

state court has already denied the same underlying claim on the merits, unless the state

court’s adjudication of that claim “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented” to the state

court. 28 U.S.C. § 2254(d)(1)–(2).

A state court’s decision is “‘contrary to’ clearly established federal law if it

‘applies a rule that contradicts the governing law set forth’ in Supreme Court precedent,

or if it ‘confronts a set of facts that are materially indistinguishable from a decision of

[the Supreme] Court and nevertheless arrives at a result different’ from that reached by

the Supreme Court.” Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting

Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). A state court’s decision unreasonably

applies clearly established federal law if “no ‘fairminded juris[t]’ could have reached the

same judgment as the state court.” Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (quoting

2 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). 3 We exercise plenary review over the District Court’s order denying a petition under AEDPA. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009). 5 Harrington v. Richter, 562 U.S. 86, 102 (2011)). And a federal court reviews a challenge

under 28 U.S.C. § 2254(d)(1) based solely upon the record before the state court. Id.

This “highly deferential standard” is “difficult to meet” and “demands that state-court

decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011) (citations omitted).

A.

Marsh claims prosecutorial misconduct based on the prosecutor’s inquiry into

Marsh’s gun ownership, the prosecutor’s statement that Marsh laid in wait to murder

Russo as with hunting, and the prosecutor’s parading of guns before the jury as noted

above. A habeas petition is granted for prosecutorial misconduct when the “prosecutor’s

remark . . . so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Moore v. Morton, 255 F.3d 95, 106 (3d Cir. 2001) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Misconduct violates due process

when it constitutes a “failure to observe that fundamental fairness essential to the very

concept of justice.” Id. at 105 (quoting Donnelly, 416 U.S. at 642). To make this

determination, “the reviewing court [] weigh[s] the prosecutor’s conduct, the effect of the

curative instructions and the strength of the evidence.” Id. at 107. The question is

whether the strength of the evidence “reduced the likelihood that the jury’s decision was

influenced by the argument” such that the acts were not so prejudicial for “a curative

instruction to [be unable to] mitigate their effect.” Id. at 106–07 (citations omitted).

Here, the New Jersey appellate court reasoned the “limiting instruction was

sufficient to overcome any prejudice the State may have created in repeatedly referencing

6 defendant’s gun collection and marksmanship. . . . [T]he instruction reinforces the court’s

prior statement to the jury that ‘[h]unting has nothing to do with this trial.’” App. 71.

We presume jurors follow limiting instructions. See Samia v. United States, 599 U.S.

635, 646 (2023). And the New Jersey appellate court recognized “there was sufficient

independent evidence upon which the jury could have relied in fairly reaching its verdict.

Between Kissel’s testimony; the missing murder weapon; defendant’s admission to

owning an American Derringer like the weapon used to kill the victim; and the cell phone

records, which undercut defendant’s alibi; the jury had more than defendant’s hunting

practices upon which to base its decision.” App. 69. The record demonstrates the trial

court’s extensive curative instructions and the “overwhelming” evidence supporting a

“finding of guilt” mitigated any “likelihood that the jury’s decision was influenced by”

impermissible arguments. Darden v. Wainwright, 477 U.S. 168, 182 (1986).

Accordingly, the New Jersey appellate court’s ruling that the State did not engage

in prosecutorial misconduct so egregious as to deprive Marsh of a fair trial is not an

unreasonable application of clearly established law. Thus, the prosecutorial misconduct

claims fail.

B.

Marsh claims ineffective assistance of counsel based on his trial counsel’s failure

to object to the prosecutor’s presentation of guns in the courtroom. To prove ineffective

assistance of counsel, Petitioner must demonstrate: (1) “counsel’s performance was

deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). Prejudice means there is “a reasonable

7 probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Preston v. Superintendent Graterford SCI, 902 F.3d 365,

382 (3d Cir. 2018) (quoting Strickland, 466 U.S. at 694). Because evidence other than

that of Petitioner’s gun possession is sufficient to support the verdict and we presume a

trial judge’s instructions are followed, as discussed in detail above, it is unlikely the result

of the proceeding would have been different had Marsh’s counsel acted differently. See

Samia, 599 U.S. at 646 (noting courts presume a limiting instruction is followed).

Therefore, Marsh’s ineffective assistance of counsel claim fails.

C.

Marsh argues the cumulative effect of prosecutorial misconduct and counsel’s

ineffectiveness violated his right to a fair trial. Cumulative error exists when “errors,

when combined, so infected the jury’s deliberations that they had a substantial influence

on the outcome of the trial.” United States v. Greenspan, 923 F.3d 138, 154 (3d Cir.

2019) (citation omitted). “[A] habeas petitioner is not entitled to relief based on

cumulative errors unless he can establish ‘actual prejudice.’” Albrecht v. Horn, 485 F.3d

103, 139 (3d Cir. 2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

Because of the jury charge, which we presume is followed, and the independent evidence

supporting the conviction, discussed above, we defer to the New Jersey appellate court’s

reasonable determinations and hold the cumulative effect of the alleged errors was

unlikely to be outcome determinative. See Samia, 599 U.S. at 646. Accordingly,

Marsh’s cumulative error claim fails.

III.

8 We find the prosecutor’s conduct here concerning. Nevertheless, under AEDPA’s

deferential standard, we defer to the state court’s reasonable determinations even when

this Court may have exercised its “independent judgment” differently. Williams, 529

U.S. at 411. For the foregoing reasons, we will affirm.