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Shalash v. Gray

United States District Court, S.D. Ohio, Western Division, Cincinnati

July 23, 2019

AHMAD SHALASH, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Timothy S. Black District Judge

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         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.
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.)

         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. 1:16-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 P ...


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