United States District Court, S.D. Ohio, Western Division, Cincinnati
Timothy S. Black District Judge
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz United States Magistrate Judge
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).
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
(Petition, ECF No. 1, PageID 5, 7-8, 10, 16-19.)
One: Sufficiency and Weight of the Evidence
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.
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.
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.
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