1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

AHMAD SHALASH, 

Petitioner, : Case No. 1:18-cv-333 

- vs - District Judge Timothy S. Black 

Magistrate Judge Michael R. Merz 

DAVID GRAY, Warden, 

 Belmont Correctional Institution, 

 : 

 Respondent. 

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 26) to the 

Magistrate Judge’s Supplemental Report and Recommendations which recommended dismissal 

(the “Supplemental Report,” ECF No. 23). The Supplemental Report reiterated the 

recommendations made in the original Report and Recommendations (the “Report,” ECF No. 18). 

Judge Black has recommitted the case to the Magistrate Judge for reconsideration in light of the 

Objections (Recommittal Order, ECF No. 27). 

 The Petition pleads four grounds for relief: 

Ground One: The 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. 

Supporting Fact(s): 1. The State presented exhaustive evidence 

regarding a series of robberies that had occurred from early 

September to late October, 2012, yet provided no direct evidence 

that Mr. Shalash was involved other than the suspect testimony of 

his two co-defendants. 
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Ground Two: Mr. Shalash was denied a fair trial when he was 

subjected to repeated instances of prosecutorial misconduct during 

his trial. 

Supporting Fact(s): 1. After giving an extensive presentation of 

undisputed evidence none of which pointed to Mr. Shalash’s 

involvement in the robberies, outside of the testimony of his 

codefendants, the State, in closing argument, resorted to 

inflammatory tactics vilifying Mr. Shalash, inciting fear, referencing 

Mr. Shalash’s religion, and vouching for the credibility of witnesses. 

Ground Three: Mr. Shalash was denied a fair trial when the trial 

court failed to instruct the jury that the firearm specifications must 

have been proven “beyond a reasonable doubt.” 

Supporting Fact(s): Trial court failed to instruct jury on the 

standard of proof for the firearm specifications in Mr. Shalash’s 

indictment. The trial court did not instruct the jury that Mr. Shalash 

must be found guilty of the specifications beyond a reasonable 

doubt. 

Ground Four: Mr. Shalash was denied his right to effective 

assistance of counsel and due process when the trial court denied his 

Petition for Post-Conviction Relief without a hearing where he 

submitted evidence outside the trial record which supported his 

claims of ineffective assistance of counsel and affidavits of his 

codefendants recanting their trial testimony. 

Supporting Fact(s): Mr. Shalash’s conviction was based on little 

to no direct evidence of his involvement in a series of robberies 

except for the suspect testimony of his co-defendants who both 

submitted affidavits recanting their testimony. 

Mr. Shalash’s post-conviction petition was supported by two 

affidavits from Jennifer Nietz, his wife and co-defendant, and one 

affidavit from Jake Pfalz, his other co-defendant wherein they both 

recanted their trial testimony. 

(Petition, ECF No. 1, PageID 5, 7-8, 10, 16-19.) 
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Analysis 

Ground One: Sufficiency and Weight of the Evidence 

 In his First Ground for Relief, Shalash asserts his conviction is not supported by sufficient 

evidence and is against the manifest weight of the evidence. The Report recommended dismissing 

the manifest weight claim as not cognizable in habeas corpus (ECF No. 18, PageID 1200). 

Petitioner does not object to that conclusion. 

 The Report concluded the sufficiency of the evidence claim was procedurally defaulted 

because, although it was argued unsuccessfully in the Ohio First District Court of Appeals, it was 

not fairly presented thereafter to the Supreme Court of Ohio (ECF No. 18, PageID 1201). In his 

Reply, Petitioner conceded he did not present insufficiency of the evidence as a proposition of law 

on his Supreme Court appeal, but noted his comment on how little evidence there was in his general 

argument for discretionary review (ECF No. 15, PageID 1171). The question, then, is whether a 

general argument of the sort Shalash made in his Memorandum in Support of Jurisdiction is 

sufficient to fairly present an issue, particularly when an appellant is represented by counsel.1

 The Report concludes the sufficiency issues was not fairly presented. In the Memorandum 

in Support of Jurisdiction, Shalash’s counsel never made the explicit claim the evidence was 

insufficient, never asserted the First District was in error for rejecting this assignment, and never 

cited any of the relevant Supreme Court precedent, Jackson v. Virginia, 443 U.S. 307 (1979), and 

its progeny. 

 To show the general argument was enough, Petitioner relied on Peterson v. Miller, No. 

 

1

 Shalash is represented here by the same attorney who represented him on appeal at both levels in the Ohio courts. 
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1:16-cv-509, 2017 U.S. Dist. LEXIS 215391 (N.D. Ohio Dec. 7, 2017). The Report distinguishes 

Peterson in that the Northern District was construing a pro se pleading which is entitled to liberal 

construction under Supreme Court precedent (Report, ECF No. 18, PageID 1202, citing Estelle v. 

Gamble, 429 U.S. 91, 106 (1976). Even in Peterson the court refused to find a liberally construed 

proposition of law raised a federal constitutional question. 

 The first set of Objections disagreed with the Report’s reading of Peterson (ECF No. 21, 

PageID 1226). Having re-examined Peterson, the Magistrate Judge agreed in the Supplemental 

Report that it can be read as finding Peterson preserved a sufficiency of the evidence claim in the 

Ohio Supreme Court by the words he used, pro se, in the relevant propositions of law. Magistrate 

Judge Greenberg wrote: 

Aside from a few references to "Fair Trial," "Due Process," and 

"Equal Protection," (Doc. No. 13-1, Exh. 17 at 242), Peterson did 

not couch the legal arguments he made in his jurisdictional 

memorandum to the Ohio Supreme Court in constitutional terms. 

Nor did he cite to any provision of the Constitution or any federal or 

state-court case applying federal constitutional law to support them. 

On the other hand, again liberally construing his state-court 

pleading, Peterson did present factual arguments that would advance 

a federal sufficiency-of -the-evidence claim, such as alleging a lack 

of physical evidence linking him to the crimes. The Court finds, 

therefore, that Peterson fairly presented this claim to Ohio courts, 

and it is preserved for federal habeas review. 

2017 U.S. Dist. LEXIS 215391 at *46. Shalash’s counsel says Peterson is not limited to pro se

litigants. But it is only pro se litigants who are entitled to the liberal construction the Peterson

court said it was giving to the pro se Memorandum in Support of Jurisdiction. Pleadings prepared 

by licensed attorneys are not entitled to that “liberal construction.” 

 Putting these distinctions aside, the Magistrate Judge also noted in the Supplemental Report 

that the Peterson decision is not controlling authority, but rather the decision of a sister court, 
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considered only for its persuasiveness.2

 While Shalash continues to object to the Magistrate 

Judge’s reading of Peterson, he adds nothing in his Supplemental Objections which requires 

further analysis. 

 Shalash continues to argue in his current Objections that even if he has procedurally 

defaulted on his sufficiency of the evidence claim, his default is excused by his actual innocence. 

While recognizing that new evidence of actual innocence can excuse a procedural default under 

Schlup v. Delo, 513 U.S. 298 (1995), the Report noted that the only new evidence of actual 

innocence was the affidavits of his two co-defendants, one of whom is the mother of his children, 

recanting their trial testimony. Recantation does not come within the types of new evidence 

accepted by the Sixth Circuit. See Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005), cited in the 

Report at PageID 1203. 

 The original Objections criticized the Report for “summarily dismiss[ing] the recanting 

affidavits without citing any law which supports the Magistrate’s contention that the affidavits are 

unreliable.” (ECF No. 21, PageID 1227). But as just noted, the Report cites Souter which quotes 

Schlup on the types of new evidence which are reliable. Id. The Supplemental Report also cites 

other case law suggesting “extreme suspicion” of affidavits recanting trial testimony, particularly 

Davis v. Bradshaw, 900 F.3d 315 (6th Cir. 2018). Shalash again objects, asserting that without the 

testimony of the co-defendants, Shalash “could not be placed at the scene of any of the alleged3

robberies.” (Current Objections, ECF No. 26, PageID 1258.) Of course with the confessing 

testimony of all the co-defendants, a prosecutor would have been gilding the lilly to introduce 

more evidence of Shalash’s presence. The fact that he did not hardly proves he could not. 

 

2

 In adopting the Report in Peterson, Chief District Judge Gaughan noted the Peterson had not objected to the 

recommended dismissal. Peterson v. Miller, 2018 U.S. Dist. LEXIS 6724 (N.D. Ohio Jan. 16, 2018). 

3

 It is uncontested that a series of robberies occurred; they are no longer only “alleged” robberies. 
6 

 

 Both the Report and Supplemental Report concluded that even if the procedural default of 

the sufficiency claim were put to one side, Shalash would not be entitled to relief on the merits of 

that claim. The Supplemental Objections agree that the law applying Jackson v. Virginia, 443 

U.S. 307 (1979), is accurately stated, but assert “[t]he Magistrate does very little analysis or 

discussion in the Supplemental R&R when determining ground one should be dismissed on the 

merits.” (Current Objections, ECF No. 26, 1259.) The Objections then discuss the evidence 

against Shalash and discuss why it is not credible. Id. at PageID 1259-60. Petitioner concludes 

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.’” Id., 

quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012). In Coleman, however, the Supreme Court 

unanimously reversed a Third Circuit grant of the writ on an insufficiency of the evidence claim. 

The evidence here is much stronger than the evidence found sufficient in Coleman. 

 On habeas review, our task is not to analyze the evidence de novo, but rather to defer first 

to the trial jury and then to the state appellate court. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 

2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v. Matthews, 

567 U.S. 37, 43 (2012). The Report quotes at length the First District’s opinion finding sufficient 

evidence (ECF No. 18, PageID 1197-99). The appellate court relied on the testimony of coconspirators Neitz and Pfalz, but also noted the conviction was supported by surveillance video, 

by testimony from employees of the four banks robbed, and by testimony of an eyewitness who 

saw the three in a white van near one of the robbed locations a couple of hours before the robbery. 

State v. Shalash, 2014-Ohio-5006 at ¶¶ 41-42. This analysis is a completely reasonable application 

of Jackson. 
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 It is therefore again respectfully recommended that Petitioner’s Objections in Ground One 

should be overruled. 

Ground Two: Prosecutorial Misconduct 

In his Second Ground for Relief, Shalash claims he was denied a fair trial by repeated acts 

of prosecutorial misconduct. Respondent asserted this claim was procedurally defaulted by trial 

counsel’s failure to make a contemporary objection to the allegedly improper comments and the 

Report agreed. The Report concluded this ground for relief was procedurally defaulted by failure 

to make a contemporaneous objection (ECF No. 18, PageID 1206-08). 

 In his First Objections, Shalash claimed he had raised ineffective assistance of trial counsel 

to excuse that default. The Supplemental Report found this ineffective assistance of trial counsel 

claim had not been properly presented to the state courts. The Current Objections add nothing on 

this point (Objections, ECF No. 26, PageID 1261). 

Although the Report did not discuss the merits of the Second Ground, the Supplemental 

Report concluded that the First District’s plain error review of this claim was entitled to deference. 

That decision is as follows: 

[*P45] A prosecuting attorney has wide latitude to summarize the 

evidence and zealously advocate the state's position during closing 

argument. See State v. Richey, 64 Ohio St.3d 353, 362, 1992 Ohio 

44, 595 N.E.2d 915 (1992). The propriety of a specific remark by a 

prosecutor must not be judged in isolation, but in light of the tenor 

and context of the entire closing argument. See State v. Slagle, 65 

Ohio St.3d 597, 607, 605 N.E.2d 916 (1992). Improper remarks 

during closing argument are grounds for reversal when the remarks 

serve to deny the defendant a fair trial. See State v. Maurer, 15 Ohio 

St.3d 239, 266, 15 Ohio B. 379, 473 N.E.2d 768 (1984). 
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[*P46] As Shalash admits, he did not object to any of the 

prosecutor's comments during closing argument. He, therefore, has 

waived all but plain error. See State v. D'Ambrosio, 73 Ohio St.3d 

141, 143-44, 1995 Ohio 129, 652 N.E.2d 710 (1995). Based upon 

our review of the record, we cannot conclude that the prosecutor's 

comments during closing argument rose to the level of plain error. 

[*P47] The prosecutor's statements extensively summarizing the 

evidence against Shalash were not improper. The prosecutor's 

comments focusing on the "scary nature" of the robberies were 

based upon testimony from bank employees that they had been 

threatened with a gun, and their fear that Pfalz could have fatally 

shot them had he chosen to do so. Likewise, the prosecutor's 

statement that the robberies were the result of a "heroin-induced 

frenzy," was based upon testimony from Neitz and Pfalz that they 

had committed the robberies to feed their heroin habit, and that they 

had robbed the banks while "high" on heroin. 

[*P48] Shalash next argues that the prosecutor committed 

misconduct when he repeatedly made inflammatory remarks about 

Shalash's religion. He points to three references to religion in the 

state's closing argument. The first reference occurred when the 

prosecuting attorney stated that Shalash and Neitz had been married 

at a mosque in Clifton. But nothing about this statement would serve 

to inflame the jury's passions. The second reference occurred during 

the prosecutor's discussion of Neitz's and Pfalz's credibility, when 

he said, 

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? 

The third reference occurred during the rebuttal portion of the state's 

closing argument when the prosecutor stated, 

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. 

[*P49] Although the comments were arguably inappropriate, they 

were not so inflammatory that we can conclude that Shalash's 
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convictions resulted from passion and prejudice instead of the state's 

proof of his guilt. The state produced overwhelming evidence of 

Shalash's guilt, and none of the cited comments were so prejudicial 

or outcome determinative as to constitute plain error and to deny 

Shalash a fair trial. 

[*P50] Finally, Shalash argues that the prosecuting attorney 

improperly vouched for the credibility of the school nurse when he 

said, "Obviously she's not going to lie to you." It is improper for an 

attorney to express a personal belief or opinion as to the credibility 

of a witness. State v. Williams, 79 Ohio St.3d 1, 12, 1997 Ohio 407, 

679 N.E.2d 646 (1997). Here, the prosecutor did not improperly 

vouch for the nurse's credibility as a witness. He merely argued that 

she was a reliable witness and that she lacked any motive to lie. 

Therefore, we overrule Shalash's second assignment of error. 

State v. Shalash, 2014-Ohio-5006 (1st Dist. Nov. 12, 2014). The Magistrate Judge agrees with the 

First District that the prosecutor’s arguments about inferring behavior from religious identification 

were improper, but unlikely to have outweighed “the overwhelming evidence of Shalash’s guilt” 

in producing a verdict. The prosecutor’s comment about the school nurse’s testimony was not 

improper at all as it did not constitute vouching. 

 The assertedly improper comments on religious identification that are at issue were all 

made during closing argument and were unobjected to. This Ground for Relief is therefore 

procedurally defaulted and the First District’s rejection of the claim on the merits is not objectively 

unreasonable. 

Ground Three: Incomplete Jury Instructions 

 In this Third Ground for Relief, Shalash claims the trial judge did not instruct the jury that 

the required standard of proof on the firearm specification was proof beyond a reasonable doubt. 

The First District found this claim defaulted for lack of a contemporaneous objection. Shalash, 
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2014-Ohio-5006, ¶¶ 51-56. The Report recommended upholding the procedural default over 

Shalash’s actual innocence claim for the reasons set forth as to Ground One. In the alternative, 

the Report recommended deference to the First District’s plain error review on this question as 

well (ECF No. 18, PageID 1216). 

With respect to the Third Ground, Shalash also argued that the jury instruction error was a 

“structural error” which is not lost by procedural default. The Report rejected this argument, 

stating, “[n]or has he cited any authority for the proposition that a ‘structural error’ cannot be 

forfeited by failure to make a contemporaneous objection.” (ECF No. 18, PageID 1213.) In his 

Objections, Shalash claims he did cite authority for that proposition and repeats citations from his 

Traverse including Arizona v. Fulminante, 499 U.S. 279 (1991), and Rose v. Clark, 478 U.S. 570 

(1986). 

The Supplemental Report concluded Shalash’s counsel misread those cases which 

basically hold structural errors are not subject to harmlessness analysis and not that a structural 

error is immune to procedural default. The Current Objections rely on prior argument as to 

procedural default (Objections, ECF No. 26, PageID 1263). 

As to the merits of Ground Three, the Report notes that the definition of reasonable doubt 

given by the trial court was completely consistent with Sullivan v. Louisiana, 508 U.S. 275 (1993). 

Here again Shalash relies on hits prior argument on the merits. 

Ground Four: Denial of Post-Conviction Petition without a Hearing 

 In his Fourth Ground for Relief, Shalash claims his rights to effective assistance of counsel, 

guaranteed by the Sixth Amendment, and due process of law, guaranteed by the Fourteenth 

Amendment, were violated when his petition for post-conviction relief was denied without an 
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evidentiary hearing. 

 The Report recommended denying this ground for relief because Shalash had not raised it 

as a constitutional question on direct appeal and thereby failed to fairly present it to the state court; 

instead, he raised it as an abuse of discretion claim (ECF No. 18, PageID 1216-17). The Report 

also recommended denying the claim on the merits because no Supreme Court precedent clearly 

establishes a right to an evidentiary hearing in state post-conviction proceedings. Id. at PageID 

1218. 

 Shalash objected that the Magistrate Judge raised procedural default sua sponte, that it had 

not been raised by Respondent (Objections, ECF No. 1231-32). The Supplemental Report noted 

the truth of this assertion, but cited Sixth Circuit law permitting a court’s raising the defense sua 

sponte. 

 Shalash now objects that raising the defense sua sponte “is frowned upon by Sixth Circuit 

precedent.” (Objections, ECF No. 26, PageID 1264, citing Gatewood v. Sloan, No. 1:16-cv-334, 

2017 U.S. Dist. LEXIS 222579, *14, (N.D. Ohio Oct. 30, 2017); Flood v. Phillips, 90 F. App'x 108, 

113-114, (6th Cir. 2004)). Gatewood is, of course, not Sixth Circuit precedent, but the opinion of a 

valued and known colleague, The Honorable William Baughman. Judge Baughman does not say that 

raising the defense sua sponte is “frowned upon.” Rather he said “that a procedural default may be 

bypassed by the federal habeas court if the underlying claim may be resolved against the petitioner on 

the merits” and then chose to decide the merits question directly. Gatewood at *14. 

Flood is a Sixth Circuit decision, but it is expressly non-precedential because it is 

unpublished. The Flood court agreed with the district court that Flood’s claims (other than 

prosecutorial misconduct) were procedurally defaulted but nevertheless considered the claims sua 

sponte on the merits “because the state did not assert procedural default as an affirmative defense 

in its responsive pleadings . . . .” 90 F. App’x at 115. 
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 Both Gatewood and Flood treat procedural default as a defense which district courts can 

raise sua sponte, but which they need not raise. Neither of them purports to overruled the published 

Sixth Circuit precedent permitting the raising of the defense sua sponte, Sowell v. Bradshaw, 372 

F.3d 821, 830 (6th Cir. 2004); Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002)(§ 2254 capital case); 

White v. Mitchell, 431 F.3d 517, 514 (6th Cir. 2005)(§ 2254 capital case); Elzy v. United States,

205 F.3d 882 (6th Cir. 2000)(§ 2255 case). And as the Supreme Court noted in Day v. McDonough, 

547 U.S. 198, 206-07 (2006), the Courts of Appeals have unanimously held, in appropriate 

circumstances, that courts on their own initiative may raise a petitioner’s procedural default. It 

was not an abuse of discretion for the Magistrate Judge to raise the procedural default defense to 

Ground Four. 

Shalash offers no additional argument as to why that defense was incorrectly decided as to 

Ground Four or on the merits of Ground Four. 

Conclusion 

 Having reconsidered the case pursuant to the Recommittal Order, the Magistrate Judge 

again respectfully recommends that the Petition be dismissed with prejudice. Because reasonable 

jurists would not disagree with this conclusion, Petitioner should be denied a certificate of 

appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively 

frivolous and therefore should not be permitted to proceed in forma pauperis. 

July 22, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. A party may respond 

to another party’s objections within fourteen days after being served with a copy thereof. Failure 

to make objections in accordance with this procedure may forfeit rights on appeal. See United 

States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 

(1985).