UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AHMAD SHALASH,

Petitioner,

vs.

Warden, BELMONT CORRECTIONAL 

INSTITUTION, 

Respondent.

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Case No. 1:18-cv-333

Judge Timothy S. Black

Magistrate Judge Michael R. Merz

DECISION AND ENTRY

ADOPTING THE REPORTS AND RECOMMENDATIONS 

OF THE UNITED STATES MAGISTRATE JUDGE (Docs. 18, 23, 28)

AS MODIFIED HERE

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate 

Judge, on April 24, 2019, submitted a Report and Recommendation recommending that 

Petitioner’s habeas petition brought under 28 U.S.C. § 2254 be dismissed (Doc. 18). 

Petitioner filed objections on June 5, 2019 (Doc. 21), which the Magistrate Judge 

addressed in a supplemental Report and Recommendation (Doc. 23). Petitioner filed 

objections to the supplemental Report and Recommendation (Doc. 26), which were

followed by a second supplemental Report and Recommendation (Doc. 28). Petitioner 

submitted a final set of objections on August 6, 2019 (Doc. 29). 

I. BACKGROUND

Petitioner Ahmad Shalash was charged with four counts of robbery and two counts 

of aggravated robbery for participating in the robbery of four banks in the fall of 2012 

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with his wife, Jennifer Neitz, and their friend, Jake Pfalz. State v. Shalash, Nos. C130746, C-130749, 2014 WL 5840147, at *1, *4 (Ohio Ct. App. Nov. 12, 2014). Neitz 

and Pfalz testified against Shalash at trial, and he was convicted of all charges by a jury 

in Hamilton County, Ohio and sentenced to an aggregate term of imprisonment of fortyfour years. Id. at *5-8. Shalash appealed his convictions to the First District Court of 

Appeals, which affirmed. Id. at *12. Shalash also filed a petition for post-conviction 

relief pursuant to Ohio Revised Code (“R.C”) § 2953.21. State v. Shalash, No. C150614, 2016 Ohio App. LEXIS 4105, at *1 (Ohio Ct. App. Oct. 7, 2016). His petition 

was denied by the state trial court, and the First District affirmed the denial. Id. at *3. 

On December 11, 2017, Shalash filed the instant habeas petition under 28 U.S.C. 

§ 2254 asserting four separate grounds for relief. For the reasons stated below, the Court 

adopts the Magistrate Judge’s recommendation and denies Shalash’s petition for habeas 

relief. 

II. ANALYSIS

A. Ground One

Petitioner’s first ground for relief in his § 2254 habeas petition asserts that “[t]he 

evidence was insufficient to convict Mr. Shalash, and the manifest weight of the evidence 

did not support the trial court’s conviction in violation of the due process clause of the 

Fourteenth Amendment.” (Doc. 1 at 5). The Magistrate Judge found that Petitioner’s

manifest-weight-of-the-evidence claim is not a federal constitutional claim, and therefore 

is not a cognizable habeas claim. (Doc. 18 at 7); see Schwarzman v. Gray, No. 17-3859, 

2018 WL 994352, at *3 (6th Cir. Jan. 30, 2018). Petitioner does not object to this 

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finding, and the Court agrees with and adopts the Magistrate Judge’s recommendation 

that the manifest-weight-of-the-evidence claim be dismissed. 

The Report and Recommendation further found Petitioner’s sufficiency-of-theevidence claim to be cognizable, but that Petitioner did not adequately raise the claim in 

state court, resulting in procedural default. (Id. at 8-9). The Magistrate Judge also found 

that Shalash did not adequately demonstrate actual innocence to excuse the default. (Id. 

at 10). 

Petitioner objects to the Magistrate Judge’s finding of procedural default, asserting 

that he adequately raised the sufficiency-of-the-evidence claim on direct appeal to the 

state supreme court based on factual arguments made in his brief, including that there 

was no physical evidence linking him to the charged robberies. (Doc. 21 at 5-6) (citing 

Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (noting that whether a petitioner

“alleg[es] facts well within the mainstream of constitutional law” is “significant to the 

determination as to whether a claim has been fairly presented”)). Petitioner also relies on 

Peterson v. Miller, in which the court found that a pro se petitioner had adequately raised 

a sufficiency-of-the-evidence claim based on the assertion of factual arguments including 

a lack of physical evidence linking him to the crimes. (Id. at 5) (citing Peterson v. Miller, 

No. 1:16-cv-509, 2017 WL 6987994, at *15-16 (N.D. Ohio Dec. 7, 2017)). 

Petitioner’s memorandum to the Supreme Court of Ohio on direct appeal raised 

three “propositions of law,” none of which involved a sufficiency-of-the-evidence claim. 

(See Doc. 10 at 109). Nevertheless, Shalash argues that like the petitioner in Peterson, he

fairly presented the claim based on factual arguments, including that there was a lack of 

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physical evidence linking him to the crimes. (Doc. 21 at 6). For example, the

introductory paragraphs of his memorandum stated generally that the state had 

“decidedly little evidence” that Petitioner was involved in the bank robberies. (Doc. 10 at 

110). Shortly after this statement, Shalash’s memorandum goes on to state that because 

“the State knew it had ‘slim pickings’ to work with” the prosecutor made inflammatory 

statements concerning Petitioner’s Muslim faith. (Id.). In the very next paragraph, 

Petitioner stated that “[f]or its part, the trial court was no help” in that it erroneously 

instructed the jury on the firearm specification. (Id.). Thus, in context, Petitioner’s 

statements concerning the lack of evidence were made in support of his express 

propositions of law regarding prosecutorial misconduct and erroneous jury instructions 

and were not made in support of a separate sufficiency-of-the-evidence claim. 

The Court agrees with the Magistrate Judge that Petitioner’s reliance on Peterson 

is not persuasive. In that case, the pro se petitioner raised two propositions of law on 

appeal to the state supreme court, yet neither proposition “clearly identif[ied] the nature 

of the claims asserted.” 2017 WL 6987994, at *15. Liberally construed, the court found 

that both propositions appeared to challenge the sufficiency of the evidence based upon 

factual assertions concerning a lack of evidence linking the petitioner to the crime. Id. at 

*44-45. By contrast, Petitioner’s propositions of law presented to the Supreme Court of 

Ohio were not vague, and rather, clearly articulated arguments unrelated to a sufficiencyof-the-evidence claim. Accordingly, Peterson is distinguishable for two reasons. First,

the court liberally construed the petition because the petitioner was pro se, and second,

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the petitioner in Peterson asked the court to consider factual arguments which supported 

the propositions of law actually raised. 

Moreover, Petitioner expressly raised a sufficiency-of-the-evidence claim as an 

“assignment of error” on direct appeal to the First District Court of Appeals stating,

“[t]he evidence was insufficient to convict Mr. Shalash . . . .” (Doc. 10 at 40). This 

shows that Shalash knew how to raise such a claim and suggests that he intentionally 

abandoned the claim on his appeal to the Supreme Court of Ohio.1

 See, e.g., Bailum v. 

Warden, Lebanon Corr. Inst., 832 F. Supp. 2d 893, 900 (S.D. Ohio 2011) (finding failure 

to exhaust § 2254 habeas claim when petitioner raised claim on appeal to the state court 

of appeals but abandoned the claim on appeal to the Supreme Court of Ohio), report and 

recommendation adopted, 832 F. Supp. 2d 893 (S.D. Ohio 2011).

Next, the Court will address Petitioner’s objection to the Magistrate Judge’s 

finding that Petitioner’s failure to exhaust his default is not excused by the “actual 

innocence” exception. Petitioner supports his claim of innocence with affidavits of his 

co-defendants recanting their testimony. (Doc. 21 at 6). 

The actual innocence exception to default is “not itself a constitutional claim, but 

instead a gateway through which a habeas petitioner must pass to have his otherwise 

barred constitutional claim considered on the merits.” Davis v. Bradshaw, 900 F.3d 315, 

326 (6th Cir. 2018) (citing Schlup v. Delo, 513 U.S. 298, 315 (1995)). Yet, “this 

innocence gateway is a narrow one” and “should open only when a petition presents 

1 Shalash was represented by the same attorneys on his direct appeal to the First District Court of 

Appeals and to the Supreme Court of Ohio. (See Doc. 10 at 39, 107). 

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evidence of innocence so strong that a court cannot have confidence in the outcome of 

the trial unless the court is also satisfied that the trial was free of nonharmless 

constitutional error.” Id. (quoting McQuiggin v. Perkins, 569 U.S. 383, 401 (2013)). 

“The exception ‘applies to a severely confined category: cases in which new evidence 

shows it is more likely than not that no reasonable juror would have convicted [the 

petitioner].’” Id. (quoting McQuiggin, 569 U.S. at 395). 

To make this assessment, courts “must consider all the evidence, old and new, 

incriminating and exculpatory, without regard to whether it would necessarily be 

admitted under the rules of admissibility that would govern at trial.” Id. (quoting House 

v. Bell, 547 U.S. 518, 538 (2006)). Courts must also “consider how the timing of the 

submission and the likely credibility of the affiants bear on the probable reliability of the 

[new] evidence.” Id. (quoting House, 547 U.S. at 537). A claim of actual innocence 

must be supported with “new, reliable evidence, such as exculpatory scientific evidence, 

trustworthy eyewitness accounts, or critical physical evidence, that was not presented at 

trial.” Id. (citing House, 547 U.S. at 537). 

For example, in Davis, the petitioner claimed actual innocence when an 

eyewitness recanted his trial testimony connecting the defendant to the murder. 900 F.3d

at 317-18. Before the defendant’s trial, the witness had previously recanted, testifying

during the trial of a co-defendant that he had lied to the police about witnessing the 

murder in order to receive the offered reward money. Id. at 318-19. Yet, after being 

incarcerated for perjury, the witness backtracked and ultimately provided more details 

about what he had seen, going on to testify at the defendant’s trial to having witnessed 

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the assault and murder. Id. at 319-20. Years later, the witness again recanted, asserting

that his father had pressured him to come forward and testify in order to get the reward 

money. Id. at 320. 

The Sixth Circuit found that the witness’s most recent recantation did not make it 

“more likely than not that no reasonable juror would have found [the defendant] guilty 

beyond a reasonable doubt.” Id. at 329 (citing Schlup, 513 U.S. at 327). While 

acknowledging that the witness’s testimony was “the primary evidence linking [the 

defendant] to [the] murder,” the court noted that the jury had found the witness’s 

testimony credible despite having been aware of his earlier recantation, opportunistic 

behavior, and drug-related history. Id. The court further reasoned that a reasonable juror 

would likely find the new recantation unreliable because it “amount[ed] to another 

change in his story,” and because his testimony implicating the defendant was 

corroborated by other evidence. Id. at 330-31. Finally, the court considered the 

circumstances surrounding the recantation, noting that the witness would not face adverse 

consequences for recanting. Id. at 333 (citing Allen v. Yukins, 366 F.3d 396, 405-06 (6th 

Cir. 2004)) (affirming district court’s finding that an “affidavit was inherently suspect 

because [the affiant] could have signed the affidavit in order to help his 

codefendant . . . without endangering his own interests”). 

In the instant case, the Magistrate Judge concluded that the affidavits of 

Petitioner’s co-defendants were unreliable (Doc. 18 at 10) and bolstered this finding in 

the supplemental Reports and Recommendations, noting that recanted testimony is 

inherently suspect (Doc. 23 at 4; Doc. 28 at 5). Petitioner persists in objecting to the 

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Magistrate Judge’s conclusion that the actual innocence exception does not apply. 

Petitioner specifically asserts that “the testimony of his coerced co-defendants was the 

only evidence placing him at the scene of any of the alleged crimes” and that “there was 

no physical evidence or any other testimonial evidence implicating him in the alleged 

crimes.” (Doc. 21 at 7).

Upon review of the record, the Court reaches the same conclusion as the 

Magistrate Judge. Although Petitioner asserts that without his co-defendants’ testimony, 

“Mr. Shalash could not have been convicted on sufficient evidence” (id. at 7), that is not 

the pertinent question. The question is whether, in light of the evidence presented at trial, 

including the co-defendants’ testimony implicating Shalash in the robberies plus the new 

evidence—the co-defendants’ affidavits recanting their trial testimony—it is more likely 

than not that “no reasonable juror would have convicted” the petitioner. Davis, 900 F.3d 

at 326. In order to assess this likelihood, the Court must consider whether a hypothetical 

jury would find the recantations reliable considering the circumstances under which they 

were made and the extent to which the testimony is corroborated by the other evidence 

presented at trial. Id. at 330.

Like in Davis, in the instant case, there was evidence presented at trial that the 

witness previously made contradictory statements concerning the defendant’s 

involvement in the crimes. Here, one of Shalash’s co-defendants—his wife, Jennifer 

Neitz—testified at trial that she wrote Shalash numerous letters while in prison stating

that Shalash was not involved in the robberies and that “he was going to be going home.” 

(Doc. 10-3 at 123-128). Thus, a jury may consider Neitz’s latest recantation to be just 

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another change in her story. Also like in Davis, the jury was made aware of the codefendants’ potential ulterior motives for testifying. In this case, both co-defendants 

testified that the prosecution offered them reduced sentences in exchange for their 

testimony implicating Shalash. (Id. at 130-131, 183-184). Nevertheless, the jury credited 

the co-defendants’ testimony, convicting Shalash. 

In addition, the co-defendants’ testimony that Shalash was involved in the 

robberies as the getaway driver of a white van was corroborated by other eyewitness 

testimony and surveillance camera footage placing him driving a white van near the 

robbed banks around the time they were robbed. For example, co-defendant Jake Pfalz

testified that Pfalz, Shalash, and Neitz, were together in the van when they drove to St. 

James Elementary school to scope out a nearby credit union. (Id. at 161-162). He 

testified that while they decided not to rob the credit union, approximately three to four 

hours later, they robbed a different bank—the Cheviot Savings Bank—with Shalash 

acting as the getaway driver. (Id. 163-169). Neitz similarly testified that the three 

defendants parked at the credit union by the school, that she entered the credit union to 

case it out, and that she later got in the van with Shalash and Pfalz after they decided not 

to rob the credit union; later robbing the Cheviot Savings Bank that afternoon with 

Shalash driving. (Id. at 86-91).

An eyewitness, Constance Lanter, the St. James school nurse, testified that she 

followed Pfalz, who had been acting suspiciously, from the school to the credit union 

where she saw “a woman . . . walking back and forth behind the credit union.” (Doc. 10-

2 at 144-145). She then saw Pfalz get into the passenger side of a white van. (Id. at 145-

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146). Lanter walked alongside the van and saw the driver who waved at her. (Id. at 146-

147). Lanter then identified the driver as Shalash and testified that the woman also got 

into the van. (Id. at 147). Further, surveillance footage and additional eyewitness 

testimony placed Shalash and Pfalz with the white van at a Dairy Mart in front of the 

First Financial Bank approximately an hour and a half before the bank was robbed (Doc. 

10-3 at 19-24, 27-28), with another camera showing Shalash at a gas station a mile away 

from the bank a half hour before the robbery. (Id. at 32-36). 

Approximately six months after Shalash’s conviction, Pfalz and Neitz submitted 

handwritten affidavits recanting their trial testimony and averring that Shalash was not 

aware of or involved in the robberies. (Doc. 10 at 20-22, 179-180). Pfalz’s statement 

simply states that he and Neitz agreed to testify against Shalash in order to get reduced 

sentences and that Shalash had no knowledge of or involvement in the bank robberies. 

(Id. at 180). Neitz’s affidavit also states that Shalash had no knowledge of the robberies, 

and further states that Pfalz and Neitz agreed to testify against Shalash because they 

believed he would be perceived as the leader because he is of Arab descent; whereas they 

would be perceived as manipulated by him, resulting in reduced sentences. (Id. at 179). 

Neitz later submitted a supplement explaining that she initially told the police that 

Shalash was involved in the robberies because she was upset with him for being 

separated from their children following the couple’s arrest on unrelated charges. (Id. at 

188). She further explains that she was heavily medicated during her testimony at trial, 

resulting in her testifying inaccurately. (Id. at 189). Neitz also submitted a transcript of 

her trial testimony indicating in the margins where her testimony was untrue—essentially 

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stating that her husband was not there, that they dropped Shalash off before the robberies 

were planned and executed, and that she drove the van. (Id. at 191-291). 

The jury that convicted Shalash was aware that Neitz previously wrote letters to 

her husband stating that he was not involved in the robberies and was also aware that the 

co-defendants agreed to testify against Shalash in exchange for reduced sentences. In 

addition, the co-defendants’ testimony was corroborated by other eye-witness accounts 

and surveillance footage. Consequently, the Court agrees with the Magistrate Judge’s 

conclusion that the statements recanting that testimony are inherently unreliable. 

Moreover, the circumstances of the recanted testimony are not compelling—they came 

several months after Shalash’s conviction, and while Neitz’s statements provide some 

level of detail (unlike Pfalz’s affidavit), Neitz has an obvious interest in now speaking in 

support of Shalash—her husband. Yancy v. Haas, 742 F. App’x 980, 984 (6th Cir. 2018) 

(explaining that “family members’ credibility may be discounted because they ‘have a 

personal stake in exonerating’ the defendant”) (quoting McCray v. Vasbinder, 499 F.3d 

568, 573 (6th Cir. 2007)). Thus, the Court does not find that it is more likely than not 

that no reasonable juror would be convinced of Shalash’s guilt beyond a reasonable 

doubt. 

In the first supplemental Report and Recommendation, the Magistrate Judge 

alternatively found that Shalash’s sufficiency-of -the-evidence claim fails on the merits. 

(Doc. 23 at 4-6). Shalash objects to this conclusion and asserts that he was convicted 

“based solely on the now recanted testimony of his co-defendants which was inconsistent 

and unreliable,” noting a lack of direct evidence implicating him. (Doc. 26 at 6-7). 

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As the Magistrate Judge properly stated, a habeas petitioner alleging a sufficiencyof-the-evidence claim must pass through two levels of deference. (Doc.23 at 5). First, 

the Court must review the trial court’s conviction, asking whether “viewing the trial 

testimony and exhibits in the light most favorable to the prosecution, any reasonable trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

(Id.) (quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)). In doing so, courts

may not “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our 

judgment for that of the jury.” (Id.). Thus, although Shalash asserts that the codefendants’ testimony was not credible, the Court’s task is not to independently assess 

the co-defendants’ credibility in place of the jury. And while Shalash objects to a lack of 

direct evidence, “a court may sustain a conviction based upon nothing more than 

circumstantial evidence.” (Id.) (quoting Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th 

Cir. 2010)).

Second, the Court must “defer to the state appellate court’s sufficiency 

determination as long as it is not unreasonable.” Brown, 567 F.3d at 205 (emphasis in 

original). Petitioner objects on the basis that “the jury could not have convicted without 

making inferences and such inferences are improper if they are ‘so unsupportable as to 

fall below the threshold of bare rationality.’” (Doc. 26 at 7) (quoting Coleman v. 

Johnson, 556 U.S. 650, 656 (2012)). The First District Court of Appeals denied

Shalash’s claim based on Neitz’s and Pfalz’s testimony, which the court found to be 

corroborated by eye-witness testimony and video surveillance footage. (Doc. 10 at 94-

97). Accordingly, upon review of the state appellate court’s reasoning, the Court agrees 

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with the Magistrate Judge that the state court’s opinion was not objectively unreasonable. 

(See Doc. 10 at 94-97). 

For the reasons stated above, Petitioner’s objections are overruled, and Petitioner’s 

request for relief based on Ground One is denied. 

B. Ground Two 

Petitioner’s second ground for habeas relief is based on “repeated instances of 

prosecutorial misconduct during his trial” in the form of statements the prosecutor made 

during closing arguments, including statements concerning Shalash’s Muslim faith, a 

comment that the robberies were committed in a “heroin induced frenzy,” and statement 

allegedly vouching for the credibility of one of the eyewitnesses. (Doc. 1 at 7, 18-19).

The Magistrate Judge found the prosecutorial misconduct claim procedurally 

defaulted, as Petitioner did not object to the statements during trial. (Doc. 18 at 13-15). 

Petitioner asserted the prosecutorial misconduct claim in his direct appeal to the First 

District. However, because he failed to object to the prosecutor’s statements at trial, the 

state court of appeals reviewed the claim only for plain error. (Doc. 10 at 98). The Sixth 

Circuit has found that when a state court enforces the “firmly-established Ohio 

contemporaneous objection rule” to find waiver, the claim is considered procedurally 

defaulted based on an independent and adequate state ground, even when the court goes 

on to consider the claim under plain error review. Wogenstahl v. Mitchell, 668 F.3d 307, 

335-37 (6th Cir. 2012). As the Magistrate Judge properly found, that is precisely what 

occurred in this case. (Doc. 18 at 15). 

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The Petitioner does not object to this initial finding of default, but rather, objects 

to the Magistrate Judge’s conclusion that his default cannot be excused by his trial 

attorney’s ineffective assistance. (Doc. 21 at 7-8). A petitioner may show “cause and 

prejudice” excusing the default by showing that the default resulted from ineffective 

assistance of counsel. Yet the petitioner is required to have raised his ineffective 

assistance claim in state court. See Stokes v. Scutt, 527 F. App’x 358, 367 (6th Cir. 

2013). In other words, “[a] claim of ineffective assistance . . . must be presented to the 

state courts as an independent claim before it may be used to establish cause for a 

procedural default.” Conley v. Warden Chillicothe Corr. Inst., 505 F. App’x 501, 507

(6th Cir. 2012) (citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)); see also 

Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005) (“To constitute cause, that 

ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore 

must be both exhausted and not procedurally defaulted.”). 

The Magistrate Judge found Petitioner’s ineffective assistance claim itself 

procedurally defaulted because Shalash did not fairly present the claim in state court. 

(Doc. 18 at 16). In order for a claim to be “fairly presented” to the state court, “a 

petitioner must assert both the legal and factual basis for his or her claim.” Williams v. 

Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (emphasis omitted) (citing McMeans v. 

Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Thus, the claim must be presented “as a 

federal constitutional issue—not merely as an issue arising under state law.” Id. (quoting 

Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)). “A petitioner can take four actions 

in his brief which are significant to the determination as to whether a claim has been 

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fairly presented as a federal constitutional claim: ‘(1) reliance upon federal cases 

employing constitutional analysis; (2) reliance upon state cases employing federal 

constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms 

sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging 

facts well within the mainstream of constitutional law.’” Id. (emphasis added) (quoting 

Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)). 

In his brief on direct appeal to the First District Court of Appeals under an 

“assignment of error” alleging prosecutorial misconduct, Shalash stated that “he received 

ineffective assistance of counsel when his trial counsel failed to object to these clearly 

prejudicial instances of prosecutorial misconduct.” (Doc. 10 at 53). Shalash further 

stated that the “obvious impropriety” of the prosecutor’s remarks warranted a finding that 

his attorney’s conduct fell below the deferential standard afforded trial counsel’s 

decisions and that he was prejudiced by his counsel’s failure to object because his 

prosecutorial misconduct claim was only entitled to plain error review. (Id. at 53-54). 

Shalash concluded the section by stating that his conviction should be reversed “whether 

based on the clear misconduct of the prosecutor during his closing remarks, or based on 

the ineffectiveness of his counsel in failing to object to them.” (Id. at 54). On direct 

appeal to the Supreme Court of Ohio, Shalash repeated the argument, albeit largely in a 

footnote, that his trial counsel was ineffective for failing to object to the prosecutor’s 

statement. (Id. at 120-121, 121 n.5). 

Based on these statements, the Court respectfully disagrees with the Magistrate 

Judge and finds that the ineffective assistance of trial counsel claim was fairly presented. 

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Petitioner did not invoke the Sixth Amendment or reference the Strickland test for 

constitutional ineffective assistance claims, but Shalash did cite to a state case employing 

federal constitutional analysis, State v. Carpenter, in which an Ohio court applied

Strickland to assess whether an attorney’s failure to object to a prosecutor’s comments

amounted to ineffective assistance of counsel. (Doc. 10 at 53, 121 n.5) (citing State v. 

Carpenter, 688 N.E.2d 1090, 1097 (Ohio Ct. App. 1996)). In addition, although Shalash 

raised this argument within his assignment of error concerning prosecutorial misconduct, 

he phrases the ineffective assistance claim as an alternative and independent ground for 

relief stating, “Mr. Shalash’s conviction should be reversed and remanded for a new trial 

whether based on the clear misconduct of the prosecutor during his closing remarks, or 

based on the ineffectiveness of his counsel in failing to object to them.” (Doc. 10 at 54, 

121). Further, he addressed both prongs of the Strickland test: objectively unreasonable 

performance and prejudice. (Doc. 10 at 53-54, 121 n.5); see Strickland v. Washington, 

466 U.S. 668, 688, 694 (1984). 

Yet, finding that Shalash’s ineffective assistance claim was not defaulted does not 

automatically excuse his defaulted prosecutorial misconduct claim. Shalash still has to 

show that his trial counsel was in fact constitutionally ineffective for failing to object to 

the prosecutor’s comments. See Buell v. Mitchell, 274 F.3d 337, 351-52 (6th Cir. 2001);

see also Erkins v. Chuvalas, 684 F. App’x 493, 499-500 (6th Cir. 2017). As noted above, 

ineffective assistance of counsel claims are governed by the two-pronged Strickland test, 

which requires defendants to show: (1) that counsel’s representation fell below an 

objective level of reasonableness and (2) that there is a reasonable probability that, but 

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for counsel’s unprofessional errors, the result of the proceeding would have been 

different. 466 U.S. at 688, 694; see Hale v. Burt, 645 F. App’x 409, 415 (6th Cir. 2016) 

(“A court need not assess counsel’s deficient performance before considering prejudice, 

where the latter inquiry is an easier one.”) (quoting Altman v. Winn, No. 14-2334, 2016 

WL 1254049, at *4 (6th Cir. Mar. 31, 2016)).2

 

Petitioner argued in state court and in his federal habeas brief that he was 

prejudiced by his trial counsel’s failure to object because his procedural misconduct 

claim was afforded only plain error review. (Doc. 10 at 53, 121 n.5; Doc. 15 at 12-13). 

However, the proper inquiry is whether there is a reasonable probability that, had counsel 

objected to the prosecutor’s statements, the outcome of his trial would have been 

different. See Erkins, 684 F. App’x at 500; Hale, 645 F. App’x at 415-16. Petitioner has 

not met his burden of showing prejudice, and as a result, he has also failed to show 

“cause” to excuse default of his prosecutorial misconduct claim. 

Moreover, the Court agrees with the Magistrate Judge’s conclusion that regardless 

of the default, Petitioner’s prosecutorial misconduct claim fails on the merits. (Doc. 23 at 

9-13). The Magistrate Judge properly found that although the state court of appeals 

2 The Court analyzes Petitioner’s ineffective assistance of counsel claim de novo, as the 

deferential AEDPA standard does not apply to claims made to excuse default. Hall v. Vasbinder, 

563 F.3d 222, 236-37 (6th Cir. 2009) (citing Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006)). 

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas relief is only 

granted when a state court’s decision “resulted in a decision that was contrary to, or involved an 

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

Court” or “resulted in a decision that 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). 

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applied plain error review, the claim is subject to deferential review under AEDPA. (Id. 

at 9); Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017) (citing Fleming v. 

Metrish, 556 F.3d 520, 531 (6th Cir. 2017)). Although the First District cited to only 

Ohio case law, there is, nevertheless, a rebuttable presumption the federal claim was 

adjudicated on the merits. See Lamar v. Houk, 798 F.3d 405, 427 (6th Cir. 2015) (finding 

rebuttable presumption that a claim was adjudicated on the merits when state court only 

addressed state-law aspect of claim) (citing Johnson v. Williams, 133 S. Ct. 1088, 1091, 

1094, 1096 (2013)). Shalash does not attempt to rebut this presumption. 

In order to demonstrate prosecutorial misconduct, a petitioner “must show that the 

prosecutor’s conduct so infected the trial so as to render the conviction fundamentally 

unfair.” Hardaway v. Burt, 846 F.3d 191 (6th Cir. 2017) (citing Parker v. Matthews, 567 

U.S. 37, 45 (2012)). Thus, the Court must consider the fairness of the trial—the 

“touchstone of due process analysis in cases of alleged prosecutorial misconduct.” 

Richardson v. Palmer, 941 F.3d 838, 848 (6th Cir. 2019) (quoting Smith v. Phillips, 455 

U.S. 209, 219 (1982)). The standard is of course higher under AEDPA review, under 

which the Court merely examines whether the state court’s opinion was an unreasonable 

application of clearly established law as established by Supreme Court precedent. Id. at 

847. 

The state court of appeals considered the prosecutor’s three statements concerning 

Shalash’s religion made in his closing argument. (Doc. 10 at 98-99). The court found 

that the prosecutor’s first statement that Shalash and Neitz had been married in a mosque 

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did not “serve to inflame the jury’s passions.” (Id.). The second statement, made in the 

context of a discussion about Neitz’s and Pfalz’s credibility stated:

Is it common sense? Is it believable? Do you believe that a Muslim wife is 

going to somehow be driving around town with an outsider, Pfalz, a 

stranger to the family, robbing banks, and the husband has been with him 

just moments before and somehow he leaves the picture with the kids in the 

van?

(Id. at 99). In a third statement, the prosecutor said in rebuttal:

Are you kidding me? Give me a break. And a Muslim wife on top of that. 

In that culture the women aren’t even supposed to be out without a male 

relative and we got her robbing banks with a non-male relative with the 

kids in the truck. Give me a break. Give me a break.

(Id.). The court of appeals found these statement “arguably improper” but “not so 

inflammatory that we can conclude that Shalash’s convictions resulted from passion and 

prejudice instead of the state’s proof of his guilt.” (Id. at 99). The court further noted 

that the state provided “overwhelming evidence of Shalash’s guilt” and held that “none of 

the comments were so prejudicial or outcome determinative as to . . . deny Shalash a fair 

trial.” (Id.). Upon review, the Magistrate Judge concluded that this analysis did not 

constitute an unreasonable application of standards adopted by the Supreme Court. (Doc. 

23 at 13).

Petitioner objects to this conclusion, citing to several circuit court opinions in 

support of his assertion of prosecutorial misconduct.

3 (Doc. 26 at 8-9). However, 

Petitioner cites no Supreme Court cases in his objections, and “[t]he Supreme Court has 

3 Petitioner only objected to the Report and Recommendation’s finding with respect to the 

prosecutor’s statements about Shalash’s religion.

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reminded us countless times that ‘circuit precedent does not constitute clearly established 

Federal law’ and ‘therefore cannot form the basis for habeas relief under AEDPA.’” 

Stewart, 867 F.3d at 641 (quoting Parker, 567 U.S. at 48-49 (2012)). Accordingly, 

Petitioner’s objection is overruled, and the Court adopts the Report and 

Recommendation’s finding that Petitioner’s second ground for habeas relief is 

procedurally defaulted, and, alternatively, that it fails on the merits. 

C. Ground Three 

Petitioner’s third ground for habeas relief asserts that he was denied a fair trial 

because the jury was not instructed that the firearm specifications must be proven beyond 

a reasonable doubt. (Doc. 1 at 8). The Report and Recommendation found this claim to 

be procedurally defaulted. (Doc. 18 at 18-19). Like with Ground Two, Shalash raised 

the jury instruction issue on direct appeal, but the state court of appeals reviewed the 

claim for plain error only because Shalash had not objected to the issue during his trial. 

(Id.). The state court of appeals relied on this independent and adequate state ground to 

reject the claim. (Id.; Doc. 10 at 100-102). Shalash concedes that the claim is 

procedurally defaulted, yet argues that his default should be excused because “he will 

suffer a miscarriage of justice if he is unable to bring this claim on the merits as the 

defective jury instruction created a structural error . . . of a constitutional nature 

[a]ffecting the fairness of the entire trial . . . .” (Doc. 15 at 16) (emphasis added). 

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The Court agrees with and adopts the Report and Recommendation’s analysis 

finding that Ground Three is procedurally defaulted. 4

 (Doc. 18 at 19-20; Doc. 23 at 13-

14). As the Magistrate Judge explained, procedural default may be excused in order to 

avoid a “miscarriage of justice,” but that exception applies only upon the presentation of 

new, reliable evidence showing the petitioner is actually innocent. Dufresne v. Palmer, 

876 F.3d 248, 256 (6th Cir. 2017) (citing Schlup, 513 U.S. at 321, 324). As discussed 

above, Petitioner has failed to make that showing. See Part II.A, supra. 

In any case, Petitioner does not appear to be asserting actual innocence to excuse 

the default of his jury instruction error claim. Rather, Petitioner seems to be arguing that 

the default should be excused because the error alleged is a “structural error.” However, 

the Sixth Circuit has rejected the argument that a claim involving structural error is not 

subject to procedural default. Carruthers v. Mays, 889 F.3d 273, 289 (6th Cir. 2018); see 

also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (holding that a petitioner 

“must show actual prejudice to excuse their default, even if the error is structural”). 

Accordingly, even assuming the error was structural, such a finding would not, in and of 

itself, excuse the default. 

In his first set of objections, Petitioner makes a slightly different argument, 

asserting that “Ohio’s contemporaneous objection rule is excused where there is 

structural error . . . .” (Doc. 21 at 9). The Court understands this argument to be that the 

claim was not procedurally defaulted, because the state court of appeals improperly 

4 The Magistrate Judge properly distinguished the cases Petitioner relied on as not involving 

procedural default of habeas claims. (Doc. 23 at 13-14). 

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applied the Ohio contemporaneous objection rule in the face of this allegedly structural 

error. This relates to the first step of the Maupin test, which is used by courts to assess 

whether a claim has been procedurally defaulted. Maupin v. Smith, 785 F.2d 135, 138 

(6th Cir. 1986). The first step of this four-part test asks whether “there is a state 

procedural rule that applies and petitioner failed to comply with that rule[.]” When a 

state court has misapplied its own procedural rule, the claim is not barred from habeas 

review. Post v. Bradshaw, 621 F.3d 406, 423 (6th Cir. 2010) (citing Hill v. Mitchell, 400 

F.3d 308, 314 (6th Cir. 2005)). 

This argument fails for two reasons. First, Petitioner has conceded in his reply 

brief that Ground Three is procedurally defaulted, which could be considered a judicial 

admission. (Doc. 15 at 16); See Beasley v. Wells Fargo Bank, N.A., 744 F. App’x 906, 

914 (6th Cir. 2018) (finding that a statement made in a brief may be binding on the

district court and court of appeals). Second, the Court finds that the Ohio court of 

appeals did not err in applying the Ohio contemporaneous objection rule. The First 

District Court of Appeals specifically analyzed whether Shalash’s assertion that the 

failure to instruct the jury that the gun specifications had to be proven beyond a 

reasonable doubt amounted to a structural error requiring automatic reversal as opposed 

to plain error review. (Doc. 10 at 100-101). The court cited multiple state-court 

decisions applying plain error review under similar factual circumstances—where the 

defendant failed to object to the fact that the jury instructions did not specifically state 

that a gun specification had to be proven beyond a reasonable doubt. (Id. at 101) (citing 

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State v. Blankenship, 657 N.E.2d 559 (Ohio Ct. App. 1995); State v. Norman, No. C920202, 1993 Ohio App. LEXIS 133, at *8-9 (Ohio Ct. App. Jan. 20, 1993)).

The state court of appeals also distinguished Sullivan v. Louisiana, in which the 

Supreme Court found that jury instructions misstating the reasonable doubt standard 

warranted reversal. 508 U.S. 275, 281-82 (1993). The court noted that in the instant 

case, the court instructed the jury multiple times of the correct reasonable doubt standard

and further instructed the jury that the state had to prove the elements of each offense 

listed in that count beyond a reasonable doubt. (Doc. 10 at 100-101). In short, Petitioner 

acknowledges he failed to object to the jury instructions, implicating Ohio’s 

contemporaneous objection rule. Finding no structural error, the court properly applied 

this independent and adequate ground to deny review of Petitioner’s claim. 

The Magistrate Judge reviewed the substance of Ground Three in the alternative, 

finding the claim to be without merit. (Doc. 18 at 20-23). The Magistrate Judge 

correctly afforded the First District Court of Appeals’ decision deferential review under 

AEDPA. See Stewart, 867 F.3d at 638 (citing Fleming, 556 F.3d at 521). The Court 

agrees with and adopts the Magistrate Judge’s finding that the state court of appeals 

reasonably applied Supreme Court precedent concerning erroneous jury instructions. As 

discussed above, the court of appeals distinguished Sullivan v. Louisiana, 508 U.S. 275 

(1993), which found that jury instructions misstating the reasonable doubt standard 

(lowering the state’s burden of proof) essentially resulted in “no jury verdict within the 

meaning of the Sixth Amendment” amounting to a “structural error.” (Doc. 10 at 100-

101); 508 U.S. at 280-82. The court noted that unlike in Sullivan, the jury in the instant 

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case was given accurate beyond-a-reasonable-doubt instructions multiple times. (Doc. 10 

at 100). In addition, the court considered the fact that the instruction was repeated at the 

end of each count in the indictment, with the jury informed that the state must prove each 

element of the listed offenses beyond a reasonable doubt. (Doc. 10 at 100-101). 

Petitioner objects to the Report and Recommendation’s analysis of the merits, 

asserting that because the beyond-a-reasonable-doubt instruction was not given in 

conjunction with the firearm specification, this “omission of the standard is certainly at 

least as offensive as misstating the burden of proof.” (Doc. 21 at 10). Yet, the Court 

agrees with the Magistrate Judge that the state court of appeals’ application of Sullivan 

was objectively reasonable for the reasons stated infra. Therefore, Petitioner’s third 

ground for habeas relief is denied as procedurally defaulted, and, alternatively, as 

meritless. 

D. Ground Four 

Shalash’s fourth ground for relief states that he “was denied his right to effective 

assistance of counsel and due process when the trial court denied his Petition for PostConviction Relief without a hearing.” (Doc. 1 at 10). Petitioner filed a petition for postconviction relief pursuant to R.C. § 2953.21 asserting that Shalash’s conviction should be 

vacated because his co-defendants recanted their trial testimony. (Doc. 10 at 176). 

Shalash also filed a supplement to his initial petition for post-conviction relief, adding a 

Sixth Amendment ineffective assistance of counsel claim on the basis that his trial 

counsel failed to investigate possible alibi witnesses. (Id. at 310). Shalash also asserted 

in the supplemental petition that his trial counsel did not follow up on information 

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Shalash provided that would allegedly show that the gun used in the robberies had been 

confiscated prior to the charges against Shalash. (Id.). Shalash submitted affidavits of 

his co-defendants to support the first claim and submitted his own affidavit in support of 

his ineffective assistance claim. The trial court denied the petition, finding both claims to 

be barred by res judicata, reasoning that Petitioner could have raised both claims on 

direct appeal. (Id.). The court alternatively found that the claims failed on the merits,

holding, with respect to the ineffective assistance claim, that even accepting Shalash’s 

statements as true, he failed to demonstrate his counsel was ineffective under Strickland. 

(Id.).

Shalash then appealed this decision to the state court of appeals, asserting one 

assignment of error: “[t]he trial court abused its discretion to the prejudice of Mr. Shalash 

when it denied his post-conviction motion without holding a hearing.” (Id. at 341). The 

court of appeals affirmed the trial court’s denial without an evidentiary hearing, finding 

that Shalash had not demonstrated substantive grounds for postconviction relief—the 

standard for a post-conviction hearing pursuant to R.C. § 2953.21(D) (formerly codified 

at R.C. § 2953.21(C)). (Id. at 373-375). 

Petitioner’s federal habeas petition asserts that Shalash was “denied his right to 

effective assistance of counsel and due process when the trial court denied his [petition]

without a hearing.” (Doc. 1 at 10) (emphasis added). The Court agrees with the 

Magistrate Judge that, to the extent Petitioner seeks relief based on the trial court’s denial 

of an evidentiary hearing, that claim is outside the scope of federal habeas review. See 

Cornwell v. Bradshaw, 559 F.3d 398, 412 (6th Cir. 2009) (finding petitioner’s claim that 

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state and district court improperly denied evidentiary hearing “not cognizable in habeas 

corpus proceedings, which cannot be used to challenge errors or deficiencies in state 

court post-conviction proceedings”) (citing Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 

1986)). Petitioner objects to the Report and Recommendation’s alternate findings that 

the claim was procedurally defaulted and fails on the merits. (Doc. 21 at 10-11). These 

objections are overruled, as Petitioner’s claim fails on the basis that it is not cognizable 

under habeas. 

Petitioner also states in one set of objections that he has alleged a claim of

ineffective assistance of counsel, asserting that the lower court unreasonably applied 

Strickland. (Doc. 21 at 12). However, the Court does not find that Petitioner has alleged

ineffective assistance of counsel as a basis for habeas relief. While it is unclear what 

Shalash meant by his statement under Ground Four that he was denied effective 

assistance of counsel because the trial court denied him a post-conviction hearing; in 

context, the most natural reading is that Shalash believes he was denied his right to fully 

present his ineffective assistance claim because he did not receive a hearing in state court. 

The facts supporting Shalash’s fourth ground for relief indicate that Shalash had 

presented evidence outside of the record to the state court, in the form of affidavits. 

(Doc. 1 at 18-19). That Shalash had presented affidavits to the state court supports his 

assertion under Ground Four that an evidentiary hearing was appropriate. Shalash’s 

federal habeas petition summarizes the contents of his affidavit in support of his 

ineffective assistance claim. (Id. at 19). Yet, the petition does not assert that his 

attorney’s alleged conduct violated Shalash’s Sixth Amendment right to effective 

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assistance, nor does the petition allege prejudice in any way (i.e., that but for his 

attorney’s missteps the outcome of his trial would have likely been different).

Shalash does discuss the merits of his ineffective assistance claim in his reply brief

or “traverse.” (Doc. 15 at 19-21). However, even there, Shalash concludes the section by 

stating that Shalash “presented grounds to support his claim of ineffective assistance of 

counsel in violation of his Sixth Amendment right to counsel” but that he “was never 

given the opportunity to fully present his claims for post-conviction relief in the trial 

court despite the[ir] likely meritorious nature.” (Doc. 15 at 21). Thus, it is apparent that 

to the extent Shalash addresses the merits of his ineffective assistance claim, he does so

in order to bolster his assertion under Ground Four that a hearing on the issue was 

warranted. 

Moreover, the fact that Shalash addresses the merits of his ineffective assistance 

claim in his reply brief does not excuse his failure to do so in his § 2254 petition. That is 

because an issue raised for the first time in a reply brief or traverse is not properly before 

the court. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (finding penalty-phase 

as opposed to guilt-phase insufficiency argument waived because it was raised for the 

first time in petitioner’s traverse). Accordingly, the Court need not separately address an 

ineffective assistance claim, as Shalash has either not presented such a claim or has 

forfeited the claim by addressing it for the first time in his traverse. For the foregoing 

reasons, habeas relief based on Ground Four is denied. 

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III. CONCLUSION

 As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has 

reviewed the comprehensive findings of the Magistrate Judge and considered de novo 

all of the filings in this matter. Upon consideration of the foregoing, the Court does 

determine that the Reports and Recommendations (Docs. 18, 23, 28) should be and are 

hereby ADOPTED as modified herein. 

Accordingly:

1) Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 

(Doc. 1) is DISMISSED with prejudice;

2) Petitioner’s objections (Docs. 21, 26, 29) are OVERRULED;

3) A certificate of appealability shall not issue, because reasonable jurists 

would not disagree with this conclusion; and

4) The Clerk shall enter judgment accordingly, whereupon this case is 

TERMINATED on the docket of this Court.

IT IS SO ORDERED.

Date: June 15, 2020 s/ Timothy S. Black

Timothy S. Black

United States District Judge

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