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. 

SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought by Petitioner Ahmad Shalash with the assistance of 

counsel, is before the Court on Petitioner’s Objections (ECF No. 21) to the Magistrate Judge’s 

Report and Recommendations which recommended dismissal (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. 22). 

 The Petition pleads four grounds for relief and Petitioner objects to the Report’s 

conclusions as to each one. They are considered here seriatim. 

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). 
2 

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. 

1:16-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 Objections disagree with the Report’s reading of Peterson (ECF No. 21, PageID 1226). 

Having re-examined Peterson, the Magistrate Judge agrees it can be read as finding Peterson 

 

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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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.” 

 In addition, the words the Peterson court was construing are different from the words 

involved here. In Peterson the word “insufficient” was used in the second proposition of law and 

the words “without [any] facts of [sic] law” were used in the first proposition in the Ohio Supreme 

Court. Here there are no words adverting to the sufficiency of the evidence in any of the 

propositions of law, prepared by counsel, that were filed in the Supreme Court of Ohio. 

 Putting these distinctions aside, the Magistrate Judge also notes that the Peterson decision 

is not controlling authority, but rather the decision of a sister court, considered only for its 

persuasiveness.2

 

 Shalash argues that even if he has procedurally defaulted on his sufficiency of the evidence 

 

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). 
4 

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 codefendants, 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 Objections criticize 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. 

 Courts in general are strongly skeptical of affidavits recanting sworn trial testimony. 

“Recanting affidavits and witnesses are viewed with extreme suspicion.” United States v. 

Willis,257 F.3d 636, 645 (6th Cir. 2001); United States v. Chambers, 944 F.2d 1252, 1264 (6th Cir. 

1991); see also United States v. Lewis, 338 F.2d 137, 139 (6th Cir. 1964). Even if accepted, 

recantation of trial testimony is generally not sufficient to grant habeas relief absent constitutional 

error. Welsh v. Lafler, 444 Fed. App’x 844, 850 (6th Cir. 2011). See general discussion to the 

same effect in Davis v. Bradshaw, 900 F.3d 315 (6th Cir. 2018). 

 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. In order for a conviction to be constitutionally 

sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 

U.S. 361, 364 (1970). 

[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 
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responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States 

v. Somerset, 2007 U.S. Dist. LEXIS 76699 * 4-5 (S.D. Ohio Oct. 12, 2007). This rule was 

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law 

which determines the elements of offenses; but once the state has adopted the elements, it must 

then prove each of them beyond a reasonable doubt. In re Winship, 397 U.S. at 361. 

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, 

re-evaluate the credibility of witnesses, or substitute our judgment 

for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 

(6th Cir. 1993). Thus, even though we might have not voted to 

convict a defendant had we participated in jury deliberations, we 

must uphold the jury verdict if any rational trier of fact could have 

found the defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, deference should be given to the trier-of-fact's verdict under Jackson and then to the appellate 
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court's consideration of that verdict, as commanded by the AEDPA. Tucker v. Palmer, 541 F.3d 

652, 656 (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). Notably, “a court may sustain a conviction based upon 

nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 

2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 

deference. First, on direct appeal, "it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury." Cavazos v. Smith, 565 U. 

S. 1, ___, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). 

And second, on habeas review, "a federal court may not overturn a 

state court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. 

766, [773], 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 

(2012) (per curiam). 

 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 co-conspirators Neitz 

and Pfalz, but also noted it 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-Ohio5006 at ¶¶ 41-42. This analysis is a completely reasonable application of Jackson. 

 In sum, Petitioner’s Objections on the sufficiency of the evidence claim should be 

overruled. 
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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 object to the allegedly improper comments. 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 Objections, Shalash recounts that he admitted at every stage in the state courts that 

his trial attorney had not made a contemporaneous objection, but asserted this was ineffective 

assistance of trial counsel. The Report noted Shalash did not raise as an assignment of error that 

he received ineffective assistance of trial counsel in this failure to object and that his entire 

argument on this point was, “Furthermore, Mr. Shalash submits that he received the ineffective 

assistance of counsel when his trial counsel failed to object to these clearly prejudicial instances 

of prosecutorial misconduct.” (Report, ECF No. 18, PageID 1209, quoting Appellant’s Brief, State 

Court Record ECF No. 10, Ex. 10, PageID 101.) Noting that any claim of ineffective assistance 

of trial counsel as an excuse for procedural default must be fairly presented to the state courts, the 

Report concluded this one sentence did not amount to fair presentation and the failure to make a 

contemporaneous objection had not been excused. 

 Shalash objects by reciting the four ways accepted for fair presentation by the Sixth Circuit 

(Objections, ECF No. 21, PageID 1229, quoting Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004): 

Additionally, a petitioner must have "'fairly presented' the substance 

of each of his federal constitutional claims to the state courts . . . ." 

Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (citations 

omitted). See also O'Sullivan, 526 U.S. at 844 (section 2254(c)
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"requires only that state prisoners give state courts a fair opportunity 

to act on their claims") (emphasis in original); Manning, 912 F.2d at 

881 ("The exhaustion requirement is satisfied when the highest court 

in the state in which the petitioner was convicted has been given a 

full and fair opportunity to rule on the petitioner's claims."). As we 

have explained: 

A petitioner can take four actions in its brief which are 

significant to the determination as to whether a claim has 

been fairly presented: (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." 

Newton, 349 F.3d at 877. See also Levine v. Torvik, 986 F.2d 1506, 

1516 (6th Cir.), cert. denied, 509 U.S. 907, 125 L. Ed. 2d 694, 113 

S. Ct. 3001 (1993) ("A petitioner 'fairly presents' his claim to the 

state courts by citing a provision of the Constitution, federal 

decisions using constitutional analysis, or state decisions employing 

constitutional analysis in similar fact patterns."). 

Clinkscale. 375 F.3d at 437-38. Clinkscale had made a claim of ineffective assistance of trial 

counsel in the Ohio Court of Appeals. Id. at 438. Shalash does not assert he made a claim that 

his attorney was ineffective for not objecting to the prosecutorial comments. Instead, he says he 

used the “clearly constitutional terms ‘ineffective assistance of counsel,’ a commonly known and 

specific constitutional right in both his direct appeal brief to the First District Court of Appeals 

and his Memorandum in Support of Jurisdiction to the Ohio Supreme Court.” (Objections, ECF 

No. 21, PageID 1229.) 

The Report rejected this argument, noting 

A constitutional claim cannot be preserved for habeas review by 

reciting talismanic words – an actual argument must be made. 

Merely using talismanic constitutional phrases like “fair trial” or 

“due process of law” does not constitute raising a federal 

constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 

2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987). “A lawyer 

need not develop a constitutional argument at length, but he must 
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make one; the words ‘due process’ are not an argument.” Riggins v. 

McGinnis, 50 F.3d 492, 494 (7th Cir. 1995). The same must be said 

of “ineffective assistance.” 

(ECF No. 18, PageID 1209-10.) 

 Examining again the Appellant’s Brief on direct appeal, the Magistrate Judge finds he did 

not raise ineffective assistance of trial counsel as an assignment of error (State Court Record, ECF 

No. 10, PageID 87, et seq.). His only mention of the Sixth Amendment, the constitutional 

provision that guarantees effective assistance, is in his argument about jury instructions, a different 

provision of the Sixth Amendment. Id. at PageID 104. On further appeal, Shalash raised three 

propositions of law, but none of them asserts ineffective assistance of trial counsel. As on direct 

appeal, he mentions in the body of his argument that it was ineffective assistance to fail to object, 

but in neither instance did he cite any law in support of that assertion. The First District certainly 

did not consider itself faced with a claim of ineffective assistance of trial counsel. Indeed, it 

enforced the procedural default of failing to make a contemporaneous objection by reviewing the 

prosecutorial misconduct claim only for plain error. 

 The Magistrate Judge remains persuaded Shalash made no claim of ineffective assistance 

of trial counsel that gave the First District a fair opportunity to decide that question. But, as with 

the First Objection, if we put the procedural default to one side, Shalash is not entitled to relief on 

the merits of his prosecutorial misconduct claim because the First District’s plain error review is 

entitled to deference under 28 U.S.C. § 2254(d)(1). The opinion of a state court on plain error 

review is still entitled to AEDPA deference if the federal court reaches the merits despite the 

procedural default. Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009); Kittka v. Franks, 539 

Fed. App’x 668, 672 (6th Cir. 2013); Bond v. McQuiggan, 506 Fed. App’x 493, 498 n. 2 (6th Cir. 

2013); Stojetz v. Ishee, 2014 U.S. Dist. LEXIS 137501 *231 (S.D. Ohio Sept. 24, 2014). 
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 The First District decided the prosecutorial misconduct claim on plain error review 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). 

[*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 
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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 

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 Sixth Circuit has articulated the relevant standard for habeas claims of prosecutorial 

misconduct: 

On habeas review, claims of prosecutorial misconduct are reviewed 

deferentially. Darden v. Wainwright, 477 U.S. 168, 181 (1986). To 

be cognizable, the misconduct must have “‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.’” Id. (citation omitted). Even if the prosecutor’s conduct 

was improper or even “universally condemned,” id., we can provide 

relief only if the statements were so flagrant as to render the entire 

trial fundamentally unfair. Once we find that a statement is 

improper, four factors are considered in determining whether the 
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impropriety is flagrant: (1) the likelihood that the remarks would 

mislead the jury or prejudice the accused, (2) whether the remarks 

were isolated or extensive, (3) whether the remarks were 

deliberately or accidentally presented to the jury, and (4) whether 

other evidence against the defendant was substantial. See Boyle v. 

Million, 201 F.3d 711, 717 (6th Cir. 2000). Under [the] AEDPA, 

this bar is heightened by the deference we give to the . . . [Ohio] 

Supreme Court’s determination of . . . [Petitioner’s] prosecutorialmisconduct claims. See Macias v. Makowski, 291 F.3d 447, 453-54 

(6th Cir. 2002)(“If this court were hearing the case on direct appeal, 

we might have concluded that the prosecutor’s comments violated 

Macias’s due process rights. But this case is before us on a petition 

for a writ of habeas corpus. So the relevant question is not whether 

the state court’s decision was wrong, but whether it was an 

unreasonable application of clearly established federal law.”). 

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003). 

On habeas review, "the relevant question is whether the prosecutor's 

comments 'so infected the trial with unfairness as to make the 

conviction a denial of due process.'" Darden v. Wainwright, 477 

U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 186, 840 

L.Ed.2d 431 (1974)). "Even if the prosecutor's conduct was 

improper or even universally condemned, we can provide relief only 

if the statements were so flagrant as to render the entire trial 

fundamentally unfair." Bowling v. Parker, 344 F.3d 487, 512 (6th 

Cir. 2003). Yet reversal is required if the prosecutor's misconduct is 

"so pronounced and persistent that it permeates the entire 

atmosphere of the trial or so gross as probably to prejudice the 

defendant." Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997); 

see also Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000), overruled 

on other grounds by, Bowling v. Parker, 344 F.3d 487, 501 n.3 (6th 

Cir. 2003). 

Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir. 2005). 

 Although then-Judge Fischer3

 did not cite any federal case law in his decision, the 

precedent cited in ¶ 45 generally adopts the federal standards. In his Reply, Shalash argued the 

merits of this claim as if habeas review were de novo and omitted any citation to relevant United 

States Supreme Court authority (ECF No. 15, PageID 1180-82). But, as noted above, our review 

 

3

 Patrick Fischer was, subsequent to the decision in this case, elected a Justice of the Ohio Supreme Court. 
13 

is deferential under 28 U.S.C. § 2254(d)(1) and only clearly established Supreme Court precedent 

can be a predicate for habeas relief. 

 The Magistrate Judge concludes that the First District’s decision is not an objectively 

unreasonable application of the standards adopted by the Supreme Court. Ground Two should 

therefore be dismissed on the merits as well as for procedural default. 

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, 

2014-Ohio-5006, ¶¶ 51-56. The Report recommends upholding the procedural default over 

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

the Report recommends 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). 

Shalash’s position is simply a misreading of these cases. The distinction made in 

Fulminante is between structural errors, which are not subject to harmless error analysis, and other 
14 

constitutional errors at trial, which are assessed as to whether they were harmful or not. 

Fulminante does not discuss procedural default in any way. The same is true of Rose.

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). 

Indeed, it is not the content of the definition about which Shalash complains, but that it was not 

repeated in conjunction with the firearm specification. The First District’s decision on the merits, 

which expressly recognized Sullivan as the controlling precedent, was not an objectively 

unreasonable application of Sullivan. 

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 

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; 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 objects that the Magistrate Judge raised procedural default sua sponte, that it had 

not been raised by Respondent (Objections, ECF No. 1231-32). Shalash is correct that Respondent 

defended Ground Four on the merits and the procedural default matter was raised sua sponte by 
15 

the Magistrate Judge. The Sixth Circuit, however, has held it is not inappropriate for the Court to 

raise a procedural default 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)(capital case); Elzy v. United States, 205 F.3d 882 (6th Cir. 2000)(§ 

2255 case). See also, Day v. McDonough, 547 U.S. 198, 206-07 (2006) (stating that “[w]hile the 

issue remains open in this Court, see Trest v. Cain, 522 U.S. 87, 90 (1997), the Courts of Appeals 

have unanimously held that, in appropriate circumstances, courts, on their own initiative, may raise 

a petitioner’s procedural default,” citing cases in all but the D.C. Circuit Court). 

 The only excusing cause suggested for this procedural default is Shalash’s asserted actual 

innocence. The insufficiency of the actual innocence argument is discussed under Ground One 

above. 

 As part of his Fourth Ground for Relief, Shalash claims he received ineffective assistance 

of trial counsel when his trial attorney failed to subpoena two witnesses, one of whom would 

allegedly have provided an alibi, and failed to investigate Shalash’s claim that the gun alleged to 

have been used in the robberies in 2012 had been confiscated in 2011. The trial judge found the 

supporting affidavits marginal at best. Shalash had made a “shotgun” allegation of ineffective 

assistance of trial counsel and had not provided affidavits from the supposed alibi witnesses. 

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 
16 

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. 

June 17, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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).