Shepard

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT SHEPARD, ) Case No. 1:25-CV-00955-JPC

)

Petitioner, ) JUDGE J. PHILIP CALABRESE

)

v. ) MAGISTRATE JUDGE

JENNIFER DOWDELL

)

DOUGLAS FENDER, WARDEN, ) ARMSTRONG

)

Respondent.

) REPORT & RECOMMENDATION

I. INTRODUCTION

Petitioner, Robert Shepard (“Mr. Shepard”), seeks a writ of habeas corpus under 28

U.S.C. § 2254. (ECF No. 1). Mr. Shepard is serving a sentence of 33 years to life in prison

after being convicted of aggravated murder, murder, and felonious assault. The victim was

the grandson of former Cleveland mayor Frank Jackson. (ECF No. 8-1, Exhibit 10, PageID #

183; ECF No. 8-2, 75:21-76:4).

Mr. Shepard asserts three grounds for relief. Respondent, Warden Douglas Fender

(“Warden”), filed an answer/return of writ on October 10, 2025. (ECF No. 8). Mr. Shepard

filed a traverse on January 8, 2026. (ECF No. 11). The Warden filed a sur-reply to Mr.

Shepard’s traverse on January 22, 2026. (ECF No. 12).

This matter was referred to me on May 13, 2025 under 28 U.S.C. § 636(b)(1)(A), Rule

72(a) of the Federal Rules of Civil Procedure, and Local Rule 72.1 to prepare a report and

recommendation on Mr. Shepard’s petition. (See ECF non-document entry dated May 13,

2025). For the reasons set forth below, I recommend that Mr. Shepard’s petition be

DISMISSED and/or DENIED. However, I also recommend that the Court GRANT Mr.

Shepard a certificate of appealability.

II. RELEVANT FACTUAL BACKGROUND

For purposes of habeas corpus review of state court decisions, a state court's findings

of fact are presumed correct and can be contravened only if the habeas petitioner shows, by

clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.

§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d

524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by

a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio

Court of Appeals for the Eighth Appellate District summarized the facts as follows:

{¶ 2} On September 19, 2021, the victim was shot and killed on Anita Kennedy Road

in Cleveland Metropolitan Housing Authority's (“CMHA”) Garden Valley area. Less

than two hours before that shooting, a 12-year-old male (“Doe”) was shot multiple

times at Cleveland's Lonnie Burten Recreation Center and Park (“Burten Center”), an

area from which the victim had recently departed. The Cleveland Police Department

(“CPD”) suspected that the shooter intended to kill the victim at the Burten Center,

shot Doe due to mistaken identity, and completed his quest a short while later.

{¶ 3} CPD investigated, and the CPD real time crime center (“RTCC”) compiled

video footage from Cleveland and CMHA cameras. CPD posited that Shepard aided

or abetted the murder of the victim by leaving the victim's dirt bike in a CMHA

housing area located on Anita Kennedy Avenue with knowledge that the victim would

be shot by others when he appeared to retrieve it. When the victim approached the

bike, the shooter exited a silver Chrysler parked on the street in front of the walkway

where the state asserted the bike was purposely placed by Shepard. The victim was

shot multiple times and died at the scene.

{¶ 4} The defense argued and CPD testimony confirmed, there was no direct evidence

to support the elements of the convictions. The defense claimed the evidence

demonstrated Shepard was not the shooter and was not at the scene at the time the

victim was shot. The defense also contended the state failed to show that Shepard

knew the identity of the shooters.

(ECF No. 8-1, Exhibit 8); State v. Shepard, No. 112225, 2023 WL 9004430, 2023-

Ohio-4791 (8th Dist. Dec. 28, 2023).

The court provided additional factual background later in the decision:

{¶ 16} DaNesha Terrell (“Terrell”) testified that she, her mom, and others ran to the

Burten Center to check on family and friends after being notified that shots had been

fired. Her family was fine, but she saw a young male lying on the ground.

{¶ 17} Terrell ran into the victim who she “practically grew up” with. She could not

recall what he was wearing. The victim, who lived in the East 38th Street area about

eight blocks from the Burten Center, asked Terrell for a ride to pick up his dirt bike.

Terrell and her brother drove the victim to a street called Sidaway Avenue in the

Garden Valley area, about a five-minute drive from the Burten Center. The only time

the victim used his cell phone was as he exited the car, and Terrell overheard him ask

someone “where[’s] the bike at?” Tr. 351.

{¶ 18} The victim asked her to wait until he retrieved his bike. Terrell looked at her

phone momentarily, saw that her mother was calling, heard shots, and looked up to

see the victim on the ground. Terrell quickly pulled away from the area and called 911

and the victim's sister.

{¶ 19} The 9:03 p.m. 911 call was played for the jury (exhibit No. 72). Terrell asked

for police assistance for a shooting at East 72d Street and Sidaway Avenue and

advised that the shooter was in a gray Chrysler 300 with dark-tinted windows, and

was wearing Timberland boots, light blue jeans, a white pullover hoodie, and a yellow

face mask. Terrell did not provide her real name due to an outstanding warrant

involving a diversion program and was not receiving consideration for her testimony.

{¶ 20} Terrell reviewed the CMHA portions of the CPD/CMHA video compilation

(exhibit No. 98). Terrell identified arriving in her mother's car and the victim exiting

her car. Terrell pulled her car up in the middle of the street beside the gray Chrysler

parked to her left to wait for the victim. She and the driver could not see each other

due to the tinted windows. Terrell remained in the spot until the shots were fired.

Terrell did not know who the victim talked with when asking about the bike or

whether the call was made by the victim or was incoming.

{¶ 21} Terrell's mother Shaunte Hooks (“Hooks”) confirmed the encounter with the

victim at the Burten Center and that she allowed Terrell to use her car to drop off the

victim and stated that she could not recall what the victim was wearing. Terrell later

returned home crying that the victim had been shot. Hooks did not see anyone riding

a dirt bike that day.

{¶ 22} Janesha Jackson (“Jackson”) testified that the victim was her brother with

whom she was very close. At about 1:00 p.m., the victim arrived at the stadium

parking lot where Jackson and friends were tailgating. They lived on the same street,

and Jackson's husband drove Jackson and the victim home about 4:00 p.m. The victim

went home, changed clothes, and left for the Burten Center on his dirt bike wearing a

black shirt and red Adidas jogging pants. Jackson learned of the shooting when called

by Terrell.

{¶ 23} Jackson identified the victim's dirt bike in a video frame photograph (exhibit

No. 80). The photograph was taken in front of a gas station located at East 55th Street

and Woodland Avenue with a time stamp of 7:08 p.m. Jackson said the individual

riding the bike was not the victim.

{¶ 24} Sergeant detective Ashley Jaycox (“Det. Jaycox”) of the CMHA police

department stated the department handles all felonies except homicides, which were

handled by the CPD homicide unit. The security camera systems are motion activated

though the newer system includes cameras with 24/7 recording. Det. Jaycox provided

the CMHA portions of the CPD video. The cameras where the incident occurred only

captured activity that was “big enough and close enough to the camera.” Tr. 386. The

detective had no other involvement with the investigation.

{¶ 25} Dr. Erica Armstrong (“Dr. Armstrong”) was employed by the Cuyahoga

County Medical Examiner's Office as a forensic pathologist and deputy medical

examiner at the time of the incident. Her primary responsibilities were to determine

the cause and manner of death.

{¶ 26} The doctor testified that EMS was unable to revive the victim at the scene.

Gunshot wounds were located in the right forehead, right temple, upper part of the

right arm, back of upper part of right arm, right arm, upper lip, and left back.

Testimony was also provided regarding autopsy photographs of the injuries and

recovery of bullet fragments. The shots were generally from close range and were the

official cause of death.

{¶ 27} Curtiss Jones, supervisor of the trace evidence unit of the Cuyahoga County

Medical Examiner's Office, testified that his duties included the collection and

analysis of trace evidence such as fibers, hairs, debris, and bullet holes from the

decedent's body and clothing. The decedent was wearing a black t-shirt, red

sweatpants, underwear, socks, shoes, and a head covering. Samples were transferred

to the DNA laboratory for testing.

{¶ 28} CPD detective Robby Prock (“Det. Prock”) responded to the scene along with

detectives Peoples and Connole. Det. Prock described the photographic exhibits of the

scene and evidence markers (exhibit Nos. 1-71). The shooting took place in a walkway

area between the townhouse style buildings with decorative fencing located to the left

and right of the walkway. The dirt bike was behind the fence portion to the right. The

walkway extended from Anita Kennedy Avenue to the parking lot behind the

buildings. DNA swabs were taken from four Sellier and Bellot .40 caliber Smith &

Wesson casings, one Blazer .40-caliber Smith & Wesson casing, the dirt bike, and cell

phone collected at the scene. A gas can that detectives were advised could be relevant

to the investigation was also swabbed.

{¶ 29} The shooting occurred five to six feet from the first-floor window of the

townhouse unit to the right of the building, and an occupant would potentially have

heard the encounter. Det. Prock estimated that the gas can was located 8 to 12 housing

units from the scene.

{¶ 30} CPD detective Kevin Warnock (“Det. Warnock”) with the gang impact unit

responded to the scene while it was being secured. He and other CPD personnel

interviewed residents and bystanders and canvassed the area for witnesses. Generally,

people did not want to be seen cooperating with police or simply refused to speak.

CPD initially believed the victim was the “sole operator of the bike throughout the

incident.” Tr. 498. Information was received that he was not. The gas can was

recovered from the residence of Kimberlie Davis who police interviewed twice. Based

on the interviews, Shepard became a person of interest

{¶ 31} Kimberlie Davis (“Davis”) reluctantly testified that she knew Shepard through

her friend who had a child with Shepard. Davis initially advised police that Shepard

had touched the gas can that police took as evidence. Shepard was at the house while

it was light outside, and Davis gave him something to eat. Davis stated she did not see

Shepard with the bike and later said she only saw Shepard with the bike during the

day.

{¶ 32} During cross-examination, Davis added that Shepard was cool and calm during

the visit and came alone. The gas can that was recovered by CPD belonged to her, but

she did not know whether the can was full or empty when Shepard was there, whether

Shepard obtained gas, or whether he returned to her house again that day.

{¶ 33} CPD investigative research analyst Macie Pierse (“Pierse”) was employed with

the RTCC that assisted with video evidence including creating compilations. Pierse

prepared the video compilation exhibit in the instant case. Pierse also authored a report

of the camera views that she examined to prepare the compilation, created a map

identifying the camera locations, and a list of the 58 video clips selected to complete

the video.

{¶ 34} Pierse stated that the time stamps on the CPD video clips were accurate and in

sequential time order as much as possible but could not say that the same was true for

the motion-activated CMHA clips. Pierse was aware that investigators thought the

shootings of the victim and at the Burten Center were related.

{¶ 35} Pierse described the video compilation for the jury. Pierse stated the scene of

a male crossing a CMHA parking lot near East 40th and Bohn Avenue was the male

who later shot Doe at the Burten Center. Several clips at the beginning of the

compilation depicted a black male in a white shirt who was riding the victim's dirt

bike in the general area of East 49th Street and Outhwaite Avenue at approximately

7:34 p.m. to 7:46 p.m.

{¶ 36} A clip from a camera located at the East 46th Street entrance of the Burten

Center showed the victim walking down East 46th Street at 7:51 p.m. looking at or

talking on his cell phone. He was wearing tennis shoes, a black shirt, red sweatpants,

and a black hair cap.

{¶ 37} The next clip was of Doe, described by the witness as, “wearing red pants with

a white stripe and a white and red or black striped shirt,” walking through the baseball

field at the Burten Center. Tr. 536. At 7:53 p.m., the victim was walking through the

playground area of the Burten Center and interacting with his cell phone. On parallel

walkways divided by tall, thick shrubs, the victim was leaving the playground area as

Doe entered.

{¶ 38} Also, at 7:53 p.m., the “suspect shooter” was captured by the camera in front

of the Burten Center walking down East 46th Street, the same street the victim walked

down, as though following the victim. At 7:54 p.m., Doe was walking out of the

playground area toward the street when the shooter walked up to him and fired until

Doe fell. The shooter ran back up East 46th Street. People began running through the

park, including the victim, and gathered near the football field sign. At 7:56 p.m., the

gray Chrysler drove through the immediate area and the Scoville Avenue portion of

the Burten Center parking lot as others ran from the park to the Outhwaite Homes

CMHA property adjacent to the Burten Center.

{¶ 39} At 8:03 p.m., the victim and several others assisted an individual who was also

wounded by the gunfire into a red car that was flagged down at East 55th Street and

Outhwaite Avenue. Tr. 551. Also, at 8:03 p.m., another clip depicted the Chrysler

stopping at the light, then proceeding through the intersection of East 55th Street and

Quincy Avenue. The Chrysler proceeded east on Quincy Avenue and, at 8:04 p.m.,

was at Quincy Avenue and Opportunity Corridor Boulevard.

{¶ 40} The video review shifted to an 8:50 p.m. clip at East 55th Street and Outhwaite

Avenue where the dirt bike and alleged rider Shepard were headed toward East 55th

Street and Kinsman Avenue. The remaining video was from CMHA motion clips and

activities on Anita Kennedy Road at cited points of the 24:10 minute video and

focused on the dirt bike rider, the victim, and the Chrysler.

{¶ 41} Pierse described:

21:52 – “[W]e are seeing a dirt bike and dirt bike rider that are entering the scene

from the west going eastbound.”

22:20 – “[T]he silver Chrysler 300 is driving westbound on Anita Kennedy”

“and stopped next to the black vehicle.” “Looks like they may have been

talking.”

22:28 – “[T]he [Chrysler] vehicle is backing up down the street and it looks like

the dirt bike rider is no longer on the dirt bike but is walking next to that

[Chrysler] vehicle.”

Tr. 561-563.

{¶ 42} The narration continued briefly without video point specifications:

[T]he vehicle is stopped and it looks like that rider * * * may be speaking with

the occupants of the vehicle. * * * The Chrysler has now pulled forward again

just out of the view of the camera. * * * The individual in the white t-shirt is now

speaking with the black vehicle at the bottom of the screen. * * * It looks like

that [black] vehicle opened the back door of that vehicle and then it did disappear

from the bottom of the screen.

Tr. 563-564.

{¶ 43} Pierse continued:

22:57 – The silver Chrysler 300 is traveling eastbound on Anita Kennedy * * *

[and] was backing into a parking spot on the side of the road right there

[indicating]. * * * [A] lighter colored vehicle traveling eastbound on Anita

Kennedy, and this is the video—the vehicle that [the victim] was a passenger in.

23:36 – There's a person that's exiting the rear passenger side of that vehicle, and

that's believed to be the victim. * * * [The victim] was on the south side of the

road when he exited the vehicle and then returned to the north side of the road

going in front of that vehicle. * * * So [the victim] goes northbound towards the

area in which his dirt bike was later found and we see somebody approach him

and extend their arm and shoot.

Tr. 565-567. Pierse was unable to locate the Chrysler in any of the CPD videos after

the shooting. The state did not inquire about CMHA videos.

{¶ 44} Pierse confirmed during cross-examination that the video clips did not depict

the person riding the dirt bike near the Burten Center around the time of the first

shooting incident. She also agreed that the dirt bike rider and black SUV arrived about

the same time and came from the same direction. The Chrysler arrived from the

opposite direction, and the dirt bike rider eventually entered the SUV and road away.

There were no video clips showing where the SUV went. There was a brief interaction

of a few seconds between the Chrysler and what appeared to be the person riding the

dirt bike. Tr. 583.

{¶ 45} Forensic DNA analyst Christine Scott (“Scott”) was employed by the

Cuyahoga County Regional Forensic Science Laboratory in the medical examiner's

office. She examined evidence for DNA, interpreted the DNA profiles recovered, and

prepared reports. Scott examined body swabs from the victim, the victim's clothing,

the left- and right-hand handlebar of the dirt bike, casings, and the gas can recovered

from the scene. Swabs from parts of the victim's body and clothing indicated a mixture

of DNA with the victim's. The handlebars contained a mixture of the victim and four

other individuals. An insufficient amount of DNA was obtained from the gas can and

bullet casings. A DNA match with Shepard was identified on the left and right

handlebar of the dirt bike.

{¶ 46} Edward Lattyak (“Lattyak”) was the supervisor of the firearms and toolmark

unit of the Cuyahoga County Medical Examiner's regional forensic science laboratory.

Lattyak examined the bullet casings, a fired bullet, and several bullet fragments. He

concluded that the bullets were fired from a Glock firearm but no firearm was

submitted. Examination of the National Integrated Ballistic Information Network

database revealed a potential match for one of the bullet casings that indicated the

same weapon may have been used in several other shooting events but none on the

same day.

{¶ 47} Special Agent Andrew Burke (“Agent Burke”) of the Federal Bureau of

Investigation was assigned to the CPD Homicide Unit's Violent Crime Task Force.

Agent Burke performed a forensic software download of data from two iPhones that

belonged to the victim. One phone had very little call activity, no data for the period

of the shooting, and no references to Shepard. The other phone with a number ending

in 1523 appeared to be the victim's primary phone. The investigation focused on data

for the period of September 19-23, 2021.

{¶ 48} The shooting occurred “around 9:10 p.m.” Tr. 628. Seven consecutive

outgoing calls were made by the victim to the same number ending in 9510 between

8:49 p.m. and 9:03 p.m. The 8:53 p.m. and 8:55 p.m. calls lasted a minute and 12

seconds, and the others may not have connected, including the last call at 9:03 p.m.

The 9510 number called the victim's 1523 number two days before the shooting.

{¶ 49} CPD attempted to identify the owner of the 9510 number. There was no name

associated with the number in the victim's phone, no text message exchanges, and no

text references to Shepard. A subpoena to the phone provider revealed there was no

subscriber name listed for the 9510 prepaid phone account. However, phone records

were secured for 9510 and reviewed for call patterns during the relevant time frame.

{¶ 50} A search was conducted of the Securus jail-phone records for calls made by

Shepard to numbers of interest selected from the call pattern reviews. Six calls were

discovered from Shepard to a number ending in 1949 between November 11 and

December 27, 2021, a number that also appeared in the 9510 records (exhibit No.

159). Shepard also made calls that appeared in the 9510 phone records to numbers

ending in 8220 and 4520 (exhibit Nos. 160, 161).

{¶ 51} Agent Burke confirmed during cross-examination that there were no incoming

calls to the victim from the 9510 number the day of the shooting. There also was no

evidence of who possessed the 1949, 2220, and 4520 numbers at the time Shepard

called them. And there was no direct evidence that Shepard owned the 9510 phone.

{¶ 52} Detective Shane Bauhof (“Det. Bauhof”) of CPD's Fourth District Homicide

Unit worked on the case with detectives Gonzalez and Diaz. Through canvassing by

the CPD gang-impact unit and CMHA, along with videos provided by CMHA, Det.

Bauhof “learned of a subject that delivered [the victim's] dirt bike to the area and * *

* why [the victim] was instructed to go to Garden Valley [by East 70th Street and

Kinsman Avenue] to pick up his dirt bike” though the victim lived in the East 38th

Street area. Tr. 673. At that point, Shepard was suspected of being the dirt bike rider.

{¶ 53} Det. Bauhof narrated his perspective of the CMHA motion-activated camera

portion of the video compilation that echoed the perspectives presented by Pierse of

the events at the Burten Center and on Anita Kennedy Road where the victim's

shooting occurred. The detective later in his testimony identified the bike rider as

Shepard in video excerpts and still shots of the video.

{¶ 54} Det. Bauhof added that CPD was unable to identify the license plates on the

black SUV and Chrysler and that when the Chrysler backed up beside the bike rider,

there appeared to be a brief conversation and a gesture by the bike rider toward the

place where the bike had been left. The Chrysler parked directly in front of that area.

Police assumed the shooter entered the Chrysler, which pulled off quickly afterward.

{¶ 55} Det. Bauhof also testified regarding still shots of the video scenes including

Doe, Doe's shooter, and the victim at the Burten Center. The similarity of the attire

between Doe and the victim and the presence of the Chrysler near the Burten Center

bolstered the conclusion that Doe was a victim of mistaken identity and that the victim

was the target.

{¶ 56} CPD received tips regarding the Chrysler that had a distinctive oversized

sunroof. A tip directed CPD to an individual named Cam who had a Chrysler 300 but

disposed of it after the shooting. A picture secured from social media was identified

by the gang-impact unit as Rashad Bilal (“Bilal”) who owned a light blue Chrysler

300 that fit the description. Bilal was the target of a narcotics investigation. Despite

efforts including checking CPD's street license reader records, the Chrysler was not

located.

{¶ 57} Cell phone records revealed calls to and from Bilal and the 9510 number CPD

attributed to Shepard on multiple days prior to the shooting. The day of the shooting,

Bilal called 9510 at 7:36 p.m., which was shortly before the Burten Center shooting

at 7:45 p.m., again at 8:08 p.m., and at 3:39 a.m., the morning after the shooting

(exhibit Nos. 155 and 181.) Records show calls were made from the 9510 number to

Bilal on September 16, the day of the shooting, at 2:46 p.m., 5:52 p.m., and 8:08 p.m.

{¶ 58} Det. Bauhof also testified that the date September 16, 2021, became significant

because that was the date that James Greathouse (“Greathouse”) was either indicted

or a warrant was issued for arson in connection with a homicide. The arson was for a

“vehicle that listed back to” the victim. Tr. 716. At the time of the victim's shooting,

Greathouse was in Texas. The detective said cell phone records for the 9510 number

and for Bilal contained calls with a Texas area code. Police determined that Shepard,

Bilal, and Greathouse were associates but were unable to identify the owner of the

Texas phone.

{¶ 59} During cross-examination, the defense emphasized that the evidence was

circumstantial and based on the state's speculation. Bilal was not identified as the

driver of the Chrysler and was still considered a suspect in the shooting but had not

been arrested or charged at the time of trial. CPD also provided no proof that the car

was titled to Bilal. The investigation was still pending at the time of trial.

{¶ 60} The state rested; the defense motion for judgment of acquittal under Crim.R.

29 was denied. The defense rested, and the renewed Crim.R. 29 motion was denied.

Id.

III. PROCEDURAL HISTORY

A. State Court Conviction

On November 4, 2021, Mr. Shepard was indicted in the Cuyahoga County Court of

Common Pleas on: (1) one unspecified-felony count of aggravated murder in violation of

O.R.C. § 2903.01(A); (2) one unspecified-felony count of murder in violation of O.R.C. §

2903.02(B); (3) one second-degree felony count of felonious assault in violation of O.R.C. §

2903.11(A)(1); and (4) one second-degree felony count of felonious assault in violation of

O.R.C. § 2903.11(A)(2). (ECF No. 8-1, Exhibit 1). Each count also carried one- and three-

year firearm specifications. Id. The victim was the grandson of former Cleveland mayor Frank

Jackson. (ECF No. 8-1, Exhibit 10, PageID # 183; ECF No. 8-2, 75:21-76:4). On November

8, 2021, Mr. Shepard pled not guilty to all charges. (ECF No. 8-1, Exhibit 2).

The case proceeded to trial. On November 1, 2022, the jury found Mr. Shepard guilty

on all counts. (ECF No. 3). On November 15, 2022, the trial court merged the convictions on

counts two through four into the aggravated murder conviction on count one, and sentenced

Mr. Shepard to an aggregate term of life with the possibility of parole in 33 years. (ECF No.

4).

B. Direct Appeal

On December 14, 2022, Mr. Shepard, through new counsel, timely filed a notice of

appeal to the Eighth Appellate District. (ECF No. 8-1, Exhibit 5). In his appellate brief, Mr.

Shepard raised the following assignments of error:

1. The trial court erred when it denied appellant’s motion for acquittal under

Crim.R.29 because the state failed to present sufficient evidence to establish

beyond a reasonable doubt the elements necessary to support the convictions.

2. Appellant’s convictions are against the manifest weight of the evidence.

3. The court erred by allowing the State to elicit inadmissible hearsay testimony

from the witnesses over defense objection and depriving appellant of due process

and a fair trial in violation of his federal and state constitutional rights.

(ECF No. 8-1, Exhibit 6).

On December 28, 2023, the Eighth Appellate District affirmed. (ECF No. 8-1, Exhibit

8). On February 12, 2024, Mr. Shepard, through counsel, timely filed a notice of appeal to

the Ohio Supreme Court. (ECF No. 8-1, Exhibit 9). In his memorandum in support of

jurisdiction, Mr. Shepard raised the following propositions of law:

1. The holding in State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, does not

permit the State to introduce both testimonial and bad acts evidence of

unindicted individuals for the truth of those allegations in order to establish a

theory of complicity.

2. Insufficient evidence exists to maintain a conviction for aggravated murder

where the conviction is based solely on the speculative circumstantial evidence

of an untested cell phone record analysis that does not establish that the

defendant ever even knew that a crime was going to occur, or in any way

advanced the goals achieving the victim’s death.

(ECF No. 8-1, Exhibit 10). On May 13, 2024, the Ohio Supreme Court declined to

accept jurisdiction of Mr. Shepard’s appeal. (ECF No. 8-1, Exhibit 11). Three justices

dissented, with Justice Donnelly writing a dissenting opinion. (ECF No. 8-1, Exhibit 12).

Justice Donnelly expressed a concern that the jury may have “fill[ed] in gaps with

guesswork.” Id. at ¶ 4. Justice Donnelly further questioned whether the State had proved the

elements of the relevant offenses beyond a reasonable doubt. Id. at ¶¶ 7-8. Justice Donnelly

stated that he “d[id] not allege that Shepard is innocent” and had “no basis on which to reach

that conclusion,” but that he was “concerned that speculation in this case has been mistaken

for circumstantial evidence and that Shepard has received a life sentence based solely on that

speculation.” Id. at ¶ 9.

On May 24, 2024, Mr. Shepard filed a motion for reconsideration. (ECF No. 8-1,

Exhibit 13). On May 30, 2024, the Ohio Supreme Court sua sponte struck Mr. Shepard’s

motion as untimely. (ECF No. 8-1, Exhibit 14).

C. Federal Habeas Action

On May 12, 2025, Mr. Shepard, through counsel, filed his 28 U.S.C. § 2254 habeas

petition. (ECF No. 1). Mr. Shepard’s habeas petition raises three grounds for relief:

1. The admission of non-testifying, out-of-court testimonial statements from

unknown witnesses violated Petitioner’s rights under the Sixth and Fourteenth

Amendments.

2. Violation of Petitioner’s rights under the Fifth, Sixth, and Fourteenth

Amendments by the admission of other acts evidence committed by unindicted

persons not related to the criminal offense.

3. The conviction was based on legally insufficient evidence which resulted in a

violation of Petitioner’s right to due process.

Id. On October 10, 2025, the Warden filed an answer/return of writ. (ECF No. 8). Mr.

Shepard filed a traverse on January 8, 2026. (ECF No. 11). The Warden filed a sur-reply to

Mr. Shepard’s traverse on January 22, 2026. (ECF No. 12).

IV. STANDARDS OF REVIEW AND GOVERNING LAW

A. Jurisdiction

28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of

habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the Constitution or laws or treaties of

the United States.” A state prisoner may file a § 2254 petition in the “district court for the

district wherein such person is in custody or in the district court for the district within which

the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The

Cuyahoga County Court of Common Pleas sentenced Mr. Shepard, and the Court takes

judicial notice that Cuyahoga County is within this Court’s geographic jurisdiction.

Accordingly, this Court has jurisdiction over Mr. Shepard’s § 2254 petition.

B. Exhaustion and Procedural Default

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), state prisoners must exhaust

all possible state remedies, or have no remaining state remedies, before a federal court can

review a petition for a writ of habeas corpus on the merits. 28 U.S.C. § 2254(b) and (c); see

also Rose v. Lundy, 455 U.S. 509 (1982). This entails giving the state courts “one full

opportunity to resolve any constitutional issues by invoking one complete round of the State's

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In

other words, “the highest court in the state in which the petitioner was convicted [must have]

been given a full and fair opportunity to rule on the petitioner's claims.” Manning v.

Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement, however, “refers

only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S.

107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a pursuit is

clearly futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).

Procedural default is a related but “distinct” concept from exhaustion. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain

consideration of a federal constitutional claim by state courts because he failed to: (1) comply

with a state procedural rule that prevented the state courts from reaching the merits of the

petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies

were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle,

456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a

procedural default, the federal court looks to the last explained state-court judgment. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).

A claim is fairly presented when it has been asserted as a federal constitutional issue at every

stage of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d

281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.

The Sixth Circuit has developed a four-part test to determine whether a procedural

default precludes a federal court from reaching a petitioner’s claim: (1) whether there is a

state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed

to comply with; (2) whether the state court “actually enforced” the state procedural rule; (3)

whether the rule is an “adequate and independent” state ground on which the state can rely to

foreclose review of a federal claim; and (4) whether the petitioner can demonstrate cause for

his failure to follow the procedural rule and actual prejudice from the alleged constitutional

error. Barton v. Warden, Southern Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015)

(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). These factors are commonly

known as the “Maupin” factors.

As the fourth Maupin factor indicates, if a procedural default has occurred, the default

can be excused and will not preclude consideration of a claim on federal habeas review if the

petitioner can demonstrate: (1) “cause for the default and actual prejudice as a result of the

alleged violation of federal law;” or (2) “failure to consider the claim will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A

“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim –

supported by new reliable evidence not presented at trial – would establish that the petitioner

was “actually innocent” of the offense. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lundgren

v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

C. Cognizable Federal Claim

Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue

at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,

2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in

application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v.

Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th

Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province

of a federal habeas court to reexamine state court determinations on state law questions.”).

A federal habeas court does not function as an additional state appellate court; it does

not review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,

614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,

“federal courts must defer to a state court's interpretation of its own rules of evidence and

procedure” in considering a habeas petition. Id. (quotation omitted). Moreover, “the doctrine

of exhaustion requires that a claim be presented to the state courts under the same theory in

which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir.

1998).

D. AEDPA Standard of Review

28 U.S.C. § 2254, as amended by AEDPA, provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim

–

(1) resulted in a decision that was contrary to, or involved an unreasonable

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

Supreme Court of the United States; or

(2) 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.

(Id.)

To determine whether relief should be granted, the Court must use the “look-through”

methodology and look to the “last explained state-court judgment” on the petitioner's federal

claim. Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We

think that a presumption which gives them no effect—which simply ‘looks through’ them to

the last reasoned decision—most nearly reflects the role they are ordinarily intended to

play.”); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (“We conclude that federal habeas

law employs a ‘look through’ presumption.”).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or

decides a case differently than the Supreme Court has on a set of materially indistinguishable

facts.’” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.

362, 412-13 (2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes

only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v.

Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the

unreasonable application clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). “The unreasonable application clause requires the state court decision to be more than

incorrect or erroneous”—it must be “objectively unreasonable.” Id.

Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for

a prior state court decision rejecting a claim, the federal court may overturn the state court's

decision only if it was ‘based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination

of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins

v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing

the record might disagree” about the finding in question, “on habeas review that does not

suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-

42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by

clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).

For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant

to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by

AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court

relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority

to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree

that the state court’s decision conflicts with this Court's precedents” and “goes no further.”

Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must show that the

state court's ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id.

V. ANALYSIS

Mr. Shepard asserts three grounds for relief, alleging that: (1) the trial court violated

his rights under the Confrontation Clause of the Sixth Amendment; (2) the trial court admitted

evidence of unrelated criminal acts allegedly committed by other unindicted individuals in

violation of his due process rights; and (3) his conviction was based on legally insufficient

evidence. The Warden argues that Mr. Shepard procedurally defaulted on his first two

grounds for relief and that all three grounds for relief are not cognizable and/or fail on the

merits.

A. Procedural Default

The Warden first argues that Mr. Shepard procedurally defaulted on his first two

grounds for relief because, while he raised those claims in his appeal to the Eighth Appellate

District, he argued them purely as questions of state law.

“[F]ederal courts ordinarily may not ‘consider a claim in a habeas petition that was

not “fairly presented” to the state courts’ absent cause and prejudice to excuse the procedural

default.” Nian v. Warden, N. Cent. Corr. Inst., 994 F.3d 746, 751 (6th Cir. 2021) (quoting

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). “To determine whether a petitioner

has fairly presented a claim in state court, [a court] ask[s] whether the petitioner: (1) relied

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

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

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

well within the mainstream of constitutional law.” Hand v. Houk, 871 F.3d 390, 418 (6th Cir.

2017) (citing McMeans, 228 F.3d at 681).

In his third assignment of error before the Eighth Appellate District, Mr. Shepard

argued that the trial court erred in permitting the State to elicit inadmissible hearsay testimony

in violation of his federal and state constitutional rights, including his right to due process.

(ECF No. 8-1, Exhibit 6). The Warden concedes that Mr. Shepard’s third assignment of error

generally maps onto Mr. Shepard’s first and second grounds for relief in this proceeding. The

Warden argues, however, that Mr. Shepard did not fairly present either claim to the Eighth

Appellate District because he argued his third assignment error as a question of state

evidentiary law rather than relying on federal constitutional principles. The Warden notes that

Mr. Shepard did not reference the Confrontation Clause and did not cite to any federal cases

employing a constitutional analysis. Instead, he argued that the court “err[ed] by allowing the

state to introduce hearsay evidence in violation of Evid. R. 801 and Evid. R. 403.” Id. at

PageID # 98. The Warden also argues that Mr. Shepard’s general references to federal

constitutional and due process rights in his assignment of error was insufficient to present his

first two grounds for relief.

Mr. Shepard makes two arguments in response. First, he argues that he fairly presented

his claims because he referenced his constitutional rights and cited to State v. Ricks, 136 Ohio

St. 3d 356, 995 N.E.2d 1181 (2013), which itself relied on a number of federal cases and

expressly addressed a federal Confrontation Clause issue. Second, he says that he fairly

presented his claims because he raised them as federal constitutional arguments in his petition

to the Ohio Supreme Court.

Whether Mr. Shepard fairly presented his first two grounds for relief is something of

a close question. The Warden is correct that, “[w]hile a petitioner need not cite ‘chapter and

verse’ of constitutional law, ‘general allegations of the denial of rights to a fair trial and due

process do not fairly present claims that specific constitutional rights were violated.’”

Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (quoting Blackmon v. Booker, 394

F.3d 399, 400 (6th Cir. 2004) (cleaned up)). It is also true that Mr. Shepard primarily argued

that the admission of inadmissible hearsay violated Ohio evidentiary rules, rather than the

Confrontation Clause or the federal due process clause.

However, Mr. Shepard’s argument before the Eighth Appellate District—namely, that

the State was allowed to present a speculative theory of the case through inadmissible

hearsay—largely mirrors his arguments in his first two habeas grounds for relief. Mr. Shepard

is also correct that he cited to Ricks, a case that dealt primarily with the Confrontation Clause.

While Mr. Shepard’s arguments are not without some merit, I ultimately conclude that

he did not fairly present his first two grounds for relief to the Eighth Appellate District. Mr.

Shepard’s brief, generic references to federal constitutional principles in his third assignment

of error cannot trump the fact that his argument focused on state evidentiary rules, including

Ohio Rule of Evidence 403(A). Notably, the Eighth Appellate District also largely focused

on whether the challenged testimony constituted hearsay under state law and did not reference

the Confrontation Clause at all. (ECF No. 8-1, Exhibit 8, ¶¶ 74-87).

In addition, while Ricks primarily dealt with the Confrontation Clause, Mr. Shepard

did not rely on Ricks’ Confrontation Clause analysis. Instead, he cited Ricks for the

proposition that testimony ostensibly offered to explain police conduct becomes inadmissible

hearsay if the testimony is more prejudicial than probative. (ECF No. 8-1, Exhibit 6, PageID

# 127). Because Mr. Shepard cited Ricks for state law principles rather than for its federal

constitutional analysis, his citation to Ricks did not fairly present his claims. See Abshear v.

Moore, 354 F. App’x 964, 968 (6th Cir. 2009) (holding that petitioner did not fairly present

claim by citing to state case employing federal analysis where petitioner “cited the case only

to establish a legal proposition that was concerned exclusively with state statutory law”).

It is also not relevant that Mr. Shepard arguably presented his first two grounds for

relief as federal constitutional claims to the Ohio Supreme Court because a defendant’s failure

to fairly present a claim to the state appellate court results in a procedural default, even if the

defendant subsequently attempted unsuccessfully to present the claim to the Ohio Supreme

Court. See Wynn v. Fender, No. 3:21-CV-02405-JG, 2024 WL 3607572, at *8 (N.D. Ohio

Apr. 18, 2024), report and recommendation adopted, 2024 WL 3606381 (N.D. Ohio July 31,

2024) (“As the Sixth Circuit has explained, ‘the Ohio Supreme Court has stated that it will

not consider constitutional claims not raised and preserved in the Ohio Court of Appeals’”)

(quoting Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir. 1985)); Monaco v. Forshey, No. 5:24-

CV-01271-CAB, 2025 WL 383458, at *18 (N.D. Ohio Feb. 4, 2025) (report and

recommendation) (holding that petitioner failed to fairly present claim where petitioner

presented it as federal constitutional question before Ohio Supreme Court but not before state

appellate court). Thus, while the question is somewhat uncertain, I conclude that Mr. Shepard

has procedurally defaulted on his first two grounds for relief.

Mr. Shepard’s procedural default can be excused if he shows either cause for the

default and resulting prejudice or that he is actually innocent of the offenses for which he was

convicted. Coleman, 501 U.S. at 750. Mr. Shepard argues that any procedural default should

be excused because he is actually innocent. However, he has not come forth with new, reliable

evidence not presented at trial showing that he was actually innocent of the offenses and thus

cannot rely on the actual innocence exception to excuse his default. Schlup, 513 U.S. at 324.

Accordingly, I recommend that the Court dismiss Mr. Shepard’s first two grounds for relief

as procedurally defaulted. Out of an abundance of caution, however, I will address each of

Mr. Shepard’s claims on the merits as well.

B. Merits

1. Ground One: Confrontation Clause

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend.

VI. The Supreme Court has “held that this bedrock procedural guarantee applies to both

federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36, 42 (2004). The

Confrontation Clause also applies both to in-court testimony and to out-of-court statements

introduced at trial. Id. at 50-52.

If a hearsay statement is testimonial, “the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.” Id. at

68. Thus, after Crawford, “[t]he Confrontation Clause bars the admission of out-of-court

testimonial statements made by an unavailable witness when those statements are offered to

prove the truth of the matter asserted and when the defendant did not have a previous

opportunity to cross-examine the witness.” Berry v, Capello, 576 F. App’x 579, 585 (6th Cir.

2014) (citing Crawford, 541 U.S. at 53-54).

Mr. Shepard argues that his Confrontation Clause rights were violated because the

State “introduce[d] the purported crimes of two purported criminals through hearsay

statements,” and because witnesses “were permitted to testify to salacious and explosive out-

of-court statements made by other people about crimes and conduct not even directly related,

if at all, to Mr. Shepard.” (ECF No. 11, PageID # 1140). Mr. Shepard further asserts that

detectives “were able to testify that Mr. Shepard was acquainted with a person who committed

serious drug dealing offenses and, in another instance, Mr. Shepard was purportedly

acquainted with another individual who is a known arsonist and murderer.” Id.

It is not obvious that the testimony at issue raises any sort of Confrontation Clause

problem. In Crawford, the Supreme Court held that the Confrontation Clause applies only to

statements that are “testimonial,” meaning statements that involve “[a] solemn declaration or

affirmation made for the purpose of establishing or proving some fact.” Id. at 51 (quoting 2

N. Webster, An American Dictionary of the English Language (1828)). Mr. Shepard argues

that detectives were permitted to testify about Mr. Shepard’s alleged affiliation with Mr. Bilal

and Mr. Greathouse, and he apparently assumes that the detectives’ testimony was based on

out-of-court statements from unknown individuals. But he has not identified any particular

piece of testimony that relayed an out-of-court, testimonial statement. Nor has he shown that

the detectives’ testimony could only have come from such statements.

Even assuming that detectives were relaying out-of-court testimonial statements,

however, Mr. Shepard has not shown that his rights under the Confrontation Clause were

violated. “[A] testimonial statement doesn’t automatically trigger the Confrontation Clause.”

Reed v. May, 134 F.4th 455, 460 (6th Cir. 2025). “For the Clause’s protections to kick in, the

statement must also have been hearsay,” meaning it must be “an out-of-court statement

introduced for the ’truth of the matter asserted’ in the statement.” Id. (quoting Anderson v.

United States, 417 U.S. 211, 219 (1974)). “The Confrontation Clause simply doesn’t apply

to ‘the use of testimonial statements for purposes other than establishing the truth of the matter

asserted.’” Id. (quoting Crawford, 541 U.S. at 60 n.9).

The Eighth Appellate District held that the detectives’ testimony was admissible “to

establish Det. Bauhof’s investigation of the events and individuals involved in the shooting

of the victim.” (ECF No. 8-1, Exhibit 8, ¶ 86). The Eighth Appellate District’s holding was

not contrary to or an unreasonable application of clearly established law. Indeed, the Sixth

Circuit has held that providing background on a police investigation is a legitimate non-

hearsay purpose. See Reed, 134 F.4th at 461 (holding that out-of-court statement was not

hearsay when the statement “was admitted to explain why the police searched the roof . . . a

valid, non-hearsay purpose”); see also Monroe v. Bunting, No. 1:12 CV 1117, 2013 WL

4592182, at *18 (N.D. Ohio Aug. 27, 2013) (“In some circumstances, out-of-court statements

not offered for the truth of the matter asserted, but for the limited purpose of explaining why

a government investigation was undertaken have been determined not to be hearsay.”);

Addison v. Smith, No. 1:10 CV 2512, 2012 WL 8009381, at *11 (N.D. Ohio Dec. 14, 2012),

report and recommendation adopted, 2013 WL 1855962 (N.D. Ohio Apr. 30, 2013) (“the

Sixth Circuit, post-Crawford, has concluded that the Confrontation Clause does not bar the

use of out-of-court statements ‘offered for the limited purpose of explaining why a

government investigation was undertaken’”) (quoting United States v. Gibbs, 506 F.3d 479,

486-87 (6th Cir. 2007)).

Mr. Shepard argues that the State’s asserted purpose for introducing the statements

was pretextual and that the State actually introduced them to prove the truth of the matter

asserted—i.e., that Mr. Shepard was affiliated with Mr. Bilal and Mr. Greathouse; that Mr.

Bilal and Mr. Greathouse had a motive to kill the victim; and that Mr. Shepard helped set the

victim up for the murder.

There is some merit to Mr. Shepard’s argument. It is troubling that detectives were

able to introduce the identity of Mr. Bilal and Mr. Greathouse—and to permit the jury to draw

the inference that those individuals were involved in the murder—under the guise of

providing investigative background and without clear evidence tying either individual to the

crime. If I were deciding this issue in the first instance, I might conclude that the stated

purported for the testimony was pretextual (assuming the testimony was, in fact, hearsay).

See Gover v. Perry, 698 F.3d 295, 307 (6th Cir. 2012) (noting that “providing ‘background

of a police investigation’ has been rejected as a valid nonhearsay purpose in some instances”

and that the risk of prejudice from admitting an out-of-court statement that a defendant was

engaged in specific criminality “‘cannot be justified simply to set forth the background of the

investigation’”) (quoting United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir, 1978)).

I am not considering Mr. Shepard’s claims in the first instance, however, and his

argument founders on AEDPA’s standard of review. While fairminded jurists could come to

different conclusions, it was not unreasonable for the Eighth Appellate District to conclude

that detectives’ testimony was introduced to explain the background of the investigation

rather than for the truth of the matter asserted. See Reed, 134 F.4th at 461-463 (holding that

there is no clearly established federal law adopting the proposition that admission of hearsay

testimony under a pretextual non-hearsay justification violates a defendant’s rights); Gover,

698 F.3d at 307 (holding that, applying AEDPA deference, it was not unreasonable for state

appellate court to conclude that testimony was introduced for valid non-hearsay purpose of

explaining background to investigation even if others could have disagreed with that

conclusion). And, because non-hearsay testimony “does not implicate any Sixth Amendment

concerns such as those raised in Crawford,” United States v. Kenney, 218 F. App’x 380, 385

(6th Cir. 2007), Mr. Shepard’s Confrontation Clause argument fails. I therefore alternatively

recommend that the Court deny Mr. Shepard’s first ground for relief on the merits.

That being said, Mr. Shepard’s Confrontation Clause arguments are not frivolous. It

is true that detectives were permitted to testify regarding relationships Mr. Shepard allegedly

had with Mr. Bilal and Mr. Greathouse without fully explaining the source of their

information and whether it came from one or more unidentified third parties. I also believe

that fair-minded jurists could disagree with the Eighth Appellate District’s conclusion that

the detectives’ testimony was admitted for the purpose of providing background on the

investigation rather than for the purpose of linking Mr. Shepard to individuals who may have

carried out the murder.

While I do not believe Mr. Shepard’s arguments are sufficient to carry the day given

AEDPA’s deferential standard of review, I do believe his arguments have enough force that

he should be permitted to pursue them further. As a result, I recommend that the Court grant

Mr. Shepard a certificate of appealability with respect to his Confrontation Clause claim.

2. Ground Two: Admission of Other Bad Acts

In his second ground for relief, Mr. Shepard argues that his due process rights were

violated because the trial court permitted witnesses to testify regarding unrelated crimes that

Mr. Bilal and Mr. Greathouse allegedly committed even though the State failed to prove that

Mr. Bilal or Mr. Greathouse had any involvement in the murder, let alone that Mr. Shepard

assisting them in carrying the murder out. Mr. Shepard argues that the testimony was both

irrelevant and unduly prejudicial.

As a general rule, an error of state law in the admissibility of evidence does not

constitute an infringement of a right guaranteed under the United States Constitution, and it

is not cognizable in habeas corpus. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

However, “[w]hen an evidentiary ruling is so egregious that it results in a denial of

fundamental fairness, it may violate due process and thus warrant habeas relief.” Id.

The Sixth Circuit has cautioned that “courts ‘have defined the category of infractions

that violate fundamental fairness very narrowly.’” Bugh, 329 F.3d at 512 (quoting Wright v.

Dallman, 999 F.2d 174, 178 (6th Cir. 1993)) (cleaned up); Burger v. Woods, 515 F. App’x

507, 509-10 (6th Cir. 2013) (“A due process claim premised on a mistaken state court

evidentiary ruling faces a steep climb”). Under this standard, state court evidentiary rulings

cannot rise to the level of due process violations unless they “offend[ ] some principle of

justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v.

Egelhoff, 518 U.S. 37, 43 (1996)). Beyond demonstrating the error resulted in a denial of

fundamental fairness, a petitioner seeking habeas relief based on a state-court evidentiary

ruling must also establish “actual prejudice” from the admission of the allegedly improper

evidence. Clemmons v. Sowders, 34 F.3d 352, 357-58 (6th Cir. 1994); see also Brown v.

O’Dea, 227 F.3d 642, 645 (6th Cir. 2000).

The Warden argues that Mr. Shepard’s claim is not cognizable because he has not

identified a Supreme Court decision holding that the admission of prejudicial other acts

evidence violates the Due Process Clause. Mr. Shepard counters that the Supreme Court has

held exactly that, as reflected in the Supreme Court’s recent decision in Andrew v. White, 604

U.S. 86 (2025).

In Andrew, the defendant was convicted of murdering her husband at a trial where the

prosecution introduced evidence about her sex life, prior affairs, and clothing. Id. at 88-89.

After she was convicted, the defendant sought habeas relief, arguing that the admission of

such evidence violated her due process rights and rendered the trial fundamentally unfair. Id.

at 89-90. The district court denied her petition, and the Tenth Circuit affirmed, holding that

the Supreme Court had not clearly established that introduction of unduly prejudicial

evidence renders a trial fundamentally unfair. Id. at 91.

The Supreme Court reversed, holding that its earlier decisions, including Payne v.

Tennessee, 501 U.S. 808 (1991), clearly established that the Due Process Clause “‘provides

a mechanism for relief’ against the introduction of evidence ‘that is so unduly prejudicial that

it renders the trial fundamentally unfair.’” Id. at 92-93 (quoting Payne, 501 U.S. at 825). The

Court also held that the legal principle undergirding Payne—that “the Due Process Clause

can in certain cases protect against the introduction of unduly prejudicial evidence at a

criminal trial”—was “a holding of this Court for purposes of AEDPA.” Id.

The Warden argues that Andrew cannot constitute clearly established law for purposes

of AEDPA because it postdates Mr. Shepard’s conviction. However, Andrew did not purport

to break new ground. To the contrary, Andrew held that, at the time of the petitioner’s

conviction in 2004, “it was clear that the introduction of unduly prejudicial evidence could,

in certain cases, violate the Due Process Clause.” Id. at 93; see also Douglas v. Bauman, No.

19-cv-10261, 2025 WL 1416984, at *11 (E.D. Mich. May 15, 2025) (stating that Andrew

“reiterated that it is clearly established” that introduction of evidence can violate the Due

Process Clause if the evidence is so prejudicial as to render the trial fundamentally unfair).

The Warden also cites Stewart v. Winn, 967 F.3d 534 (6th Cir. 2020), for the

proposition that, under AEDPA, a petitioner “must identify a Supreme Court case that

addresses the ‘specific kind of evidence’ challenged.” Id. at 538 (quoting Moreland v.

Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012)). That holding appears to be inconsistent with

Andrew’s statement that Payne was not limited to its facts because “[g]eneral legal principles

can constitute clearly established law for purposes of AEDPA so long as they are holdings of

this Court.” 604 U.S. at 94. The Court also stated that, although it “ha[d] not previously relied

on Payne to invalidate a conviction for improperly admitted prejudicial evidence . . . ‘certain

principles are fundamental enough that when new factual permutations arise, the necessity to

apply the earlier rule will be beyond doubt.’” Id. at 95 (quoting White v. Woodall, 572 U.S.

at 427).

Another court in this district has held that Stewart and other similar cases from the

Sixth Circuit do not carry the day in light of Andrew. See Ali v. Moore, No. 5:23-CV-02332,

2026 WL 999883 (N.D. Ohio Apr. 14, 2026) (report and recommendation). Like Mr. Shepard,

the petitioner in Ali argued that the trial court violated his due process rights by admitting

prejudicial other acts evidence. Id. at *5. The Warden argued that the petitioner’s claim was

not cognizable under Stewart and other Sixth Circuit cases because the petitioner needed to

identify a Supreme Court case dealing with the specific kind of evidence at issue. Id. at *6.

The Ali court held that Andrew “precludes a finding that no clearly established

Supreme Court precedent is applicable here.” Id. The court noted that Andrew rejected the

Tenth Circuit’s position that there was no Supreme Court precedent establishing a general

rule that the erroneous admission of prejudicial evidence can violate due process. Id. (quoting

Andrew, 604 U.S. at 87-88). Ali further held that Stewart “rejected any possible finding that

AEDPA limited the holding in Payne to its facts . . . .” Id. Accordingly, the Ali court

concluded that there was “clearly established U.S. Supreme Court precedent sufficient to

require consideration of the merits” of the petitioner’s claim that the admission of prejudicial

other acts evidence violated his due process rights. Id. at *7.

Ali is persuasive, and I agree that Andrew and Payne constitute clearly established law

for purposes of Mr. Shepard’s claim, notwithstanding Stewart and other similar decisions

from the Sixth Circuit. The question, then, is whether the Eighth Appellate District acted

contrary to or unreasonably applied Andrew and Payne when it held that the testimony from

Detective Bauhof regarding Mr. Bilal and Mr. Greenhouse was admissible.

Mr. Shepard argues that the trial court should not have permitted Detective Bauhof

to testify that Mr. Bilal and Mr. Greathouse were suspected in or had been charged with other

crimes, including drug trafficking, arson, and murder, because that testimony was irrelevant,

unduly prejudicial, and served only to allow the State to present its speculative theory of the

case under the guise of providing investigative background.

As an initial matter, Mr. Shepard is incorrect when he argues that evidence of crimes

Mr. Greathouse and Mr. Bilal allegedly committed was irrelevant to the State’s case against

him. Mr. Shepard argues, for example, that the trial court should not have permitted Detective

Bauhof to testify that Mr. Greathouse had been indicted for arson in connection with a murder

that occurred in 2019. However, Detective Bauhof testified that Mr. Greathouse was indicted

for arson of a car listed to the victim a few days before the victim was murdered. (ECF No.

8-5, 716:8-24). Detective Bauhof further testified that Mr. Greathouse was in Texas at the

time of the murder and that cell phone records for Mr. Shepard included calls to a Texas area

code. Id. at 716:25-717:15.

That testimony may have been speculative, but it was not irrelevant. As Mr. Shepard’s

counsel told the trial court during a sidebar immediately preceding that testimony, the State’s

theory of the case was that the victim loaned his car for use in a murder, that the car was set

on fire, and that the victim was killed because he was a witness and was cooperating with the

police. Id. at 711:6-20. Unlike Andrew, where the trial court permitted irrelevant testimony

regarding the defendant’s sex life and clothing choices, Detective Bauhof’s testimony went

directly to the question of why the victim may have been murdered and who may have carried

it out.

The same is true of Detective Bauhof’s testimony regarding Mr. Bilal’s alleged drug

activities. Detective Bauhof testified that he received a social media photograph of the

individual allegedly known as “Cam” from a tipster, and that the photograph was provided to

the gang impact unit. (ECF No. 8-5, 694:2-8). Detective Bauhof also testified that the gang

impact unit provided him with information identifying “Cam” as Mr. Bilal, and that vice

detectives had an open drug investigation into him. Id. at 694:8-695:1. Detective Bauhof

testified that vice agents were contacting Mr. Bilal to buy narcotics by contacting a telephone

number that showed up in Mr. Shepard’s call logs. Id. at 695:2-20. Mr. Bilal’s alleged drug

trafficking was relevant to the detectives’ investigation and to explaining how detectives

linked Mr. Shepard to the telephone number.

Nor was the State given free rein to present its theory of the case through such

testimony. During the trial, Mr. Shepard’s counsel objected when the prosecution asked

Detective Bauhof to explain his theory with respect the motive for the murder. (ECF No. 8-

5, PageID # 965). During the ensuing sidebar, Mr. Shepard’s counsel objected that the

prosecution was seeking to elicit a “truly speculative” theory that the victim had loaned his

car in connection with a murder, that the car had then been set on fire, and that the victim was

killed because he was a witness and was cooperating with the police. Id. at PageID # 966.

The court ruled that Detective Bauhof could testify regarding “what else came up in the

investigation itself” but that he should do so “without identifying this as a theory or a motive”

and that the jury “if they make a connection, that’s their purview to do without a detective

impugning any additional weight to that . . . .” Id. at PageID # 968. Following the sidebar,

Detective Bauhof testified that Mr. Greathouse was indicted for arson of the victim’s vehicle

on the same date as the victim’s murder, but did not express any theories regarding motive

for the murder. Id. at PageID # 971. Detective Bauhof’s testimony regarding Mr. Bilal’s

criminal history was likewise brief and did not include any theory of how Mr. Bilal’s alleged

drug trafficking activities may have played a role in the murder. (ECF No. 8-5, 694:13-

695:10).

Given the limited scope of the testimony that the trial court permitted Detective

Bauhof to offer, I cannot say that admission of this testimony rendered the trial fundamentally

unfair. Nor can I say that the Eighth Appellate District acted contrary to or unreasonably

applied clearly established law in holding that the testimony was properly admitted to

establish the detectives’ “investigation of the events and individuals involved in the shooting

of the victim.” (ECF No. 8-1, Exhibit 8, ¶ 86). I therefore alternatively recommend that the

Court deny Mr. Shepard’s second ground for relief on the merits.

Although I conclude that Mr. Shepard’s second ground for relief fails under AEDPA,

however, I am troubled by what occurred during the trial. Despite the trial court’s efforts to

limit Detective Bauhof’s testimony, jurors heard testimony that Mr. Shepard was affiliated

with alleged drug traffickers, arsonists, and murderers, one of whom had allegedly set the

victim’s car on fire. There is also potential merit to Mr. Shepard’s argument that, because the

prosecution asked Detective Bauhof to explain his theory of the case immediately before he

testified about Mr. Greathouse’s arson charge, the State primed the jury to infer motive, even

if the trial court made the state withdraw the question.

Mr. Shepard is wrong that Detective Bauhof’s testimony was irrelevant. But whether

the testimony was unduly prejudicial is potentially another matter. That is particularly true

given the weak, circumstantial evidence tying Mr. Greathouse and Mr. Bilal to the murder,

which included a Texas phone number that may have belonged to Mr. Greathouse and a

Chrysler that may have belonged to Mr. Bilal, even though the car appeared to be the wrong

color in surveillance videos. Accordingly, while I recommend that the Court deny Mr.

Shepard’s second ground for relief, I also recommend that the Court grant him a certificate

of appealability.

3. Ground Three: Sufficiency of the Evidence

In his third and final ground for relief, Mr. Shepard argues that his due process rights

were violated because the evidence presented at trial was insufficient to convict him of

complicity as a matter of law. While Mr. Shepard’s arguments are not without some force,

they are ultimately unavailing given the substantial deference I must give to the state courts’

rulings under AEDPA.

“Criminal defendants have a due-process right not to be convicted of a crime ‘except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which [they are] charged.’” Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018) (quoting

In re Winship, 397 U.S. 358, 364 (6th Cir. 2018). Challenges to a state court conviction based

on the sufficiency of the evidence are properly cognizable in a federal habeas corpus petition.

See Jackson v. Virginia, 443 U.S. 307, 321 (1979). In reviewing the sufficiency of the

evidence, “the 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.” Id. at 319. The reviewing court may not “reweigh

the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of

the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

Review of sufficiency of the evidence challenges involves “a double layer of

deference[.]” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). “First, [a court] must view

the evidence in the light most favorable to the prosecution, and determine whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” Mathis v. Colson, 528 F. App’x 470, 476 (6th Cir. 2013) (quoting Jackson, 443 U.S.

at 319). “Second, ‘even were [a court] to conclude that a rational trier of fact could not have

found a petitioner guilty beyond a reasonable doubt, on habeas review, [a court] must still

defer to the state appellate court’s sufficiency determination as long as it is not

unreasonable.’” Id. (quoting Brown, 567 F.3d at 205). A habeas petitioner “who challenges

the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable

hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (quoting United States v. Oros,

578 F.3d 703, 710 (7th Cir. 2009)).

The Jackson standard “must be applied with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. The

parties agree that, because Mr. Shepard’s other convictions merged into his conviction for

complicity to commit murder, it is the complicity charge against which the sufficiency of the

evidence must be measured.

Ohio’s complicity statute, O.R.C. § 2923.03(A), provides in relevant part that “[n]o

person, acting with the kind of culpability required for the commission of an offense, shall . .

. . [a]id or abet another in committing the offense” or “[c]onspire with another to commit the

offense . . . .” O.R.C. § 2923.03(A)(2)-(3). The aider or abettor must also share the same

criminal intent as the principal. State v. Johnson, 93 Ohio St. 3d 240, 754 N.E.2d 796, 797

(2001). Criminal intent may be inferred from the circumstances surrounding the crime. Id.

Notably, the Ohio Supreme Court “has held that the state need not establish the identity of

the principal in order to convict an offender of complicity.” In re T.K., 109 Ohio St. 3d 512,

849 N.E.2d 286, 288 (2006).

Mr. Shepard argues that the evidence was insufficient to support his conviction for

complicity because there was no direct evidence that he committed any criminal act, and

because the State convicted him based on speculation and inappropriate testimony regarding

relationships he may have had with other individuals who may have been involved in the

crime. Mr. Shepard notes that none of the witnesses placed him at the scene at the time of the

murder, and he further notes that detectives admitted they lacked direct evidence of his

involvement.

After extensively summarizing the evidence presented against Mr. Shepard, the

Eighth Appellate District rejected his sufficiency of the evidence claim as follows:

{¶ 61} The state argued that Shepard aided and abetted the offenses. Shepard contends

that the evidence is insufficient to establish the requisite elements of the convictions

based on complicity. R.C. 2923.03(A) provides in pertinent part that [n]o person,

acting with the kind of culpability required for the commission of an offense, shall *

* * aid or abet another in committing the offense.” R.C. 2923.03 (A)(2). “[C]onviction

of the principal offender is not a prerequisite to finding a defendant guilty of

complicity.” State v. Gardner, 8th Dist. Cuyahoga No. 111506, 2023-Ohio-307, ¶ 34,

citing R.C. 2923.03(B) (“It is no defense to a charge under this section that no person

with whom the accused was in complicity has been convicted as a principal

offender.”). The state is not required to establish the principal's identity to convict an

offender of complicity, but only that the state proves that a principal committed the

offense. Id., citing R.C. 2923.03(C) and State v. Perryman, 49 Ohio St.2d 14, 358

N.E.2d 1040 (1976), paragraph four of the syllabus, vacated on other grounds, sub

nom., Strodes v. Ohio, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).

{¶ 62} Counts 2, 3, and 4 merged into Count 1, and Shepard was sentenced on one

three-year gun specification and Count 1, aggravated murder, only, “so we consider

the sufficiency of the evidence on [that conviction] only.” (Footnote omitted).

McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, at ¶ 25, citing State

v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“A ‘conviction’

consists of a guilty verdict and the imposition of a sentence or penalty [emphasis

sic].”). State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 138

(merger of kidnapping count with aggravated-robbery and aggravated-burglary counts

moots sufficiency-of-the-evidence claim regarding kidnapping count).

{¶ 63} R.C. 2923.03, entitled “Complicity,” does not define aiding and abetting. The

Ohio Supreme Court has stated that to aid or abet means to “ ‘[t]o assist or facilitate

the commission of a crime, or to promote its accomplishment.’ ” State v. Johnson, 93

Ohio St.3d 240, 243, 754 N.E.2d 796 (2001), quoting Black's Law Dictionary 69 (7th

Ed.1999).

“To support a conviction for complicity by aiding and abetting pursuant to R.C.

2923.03(A)(2), the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission

of the crime, and that the defendant shared the criminal intent of the principal.”

Johnson at syllabus. “ ‘Participation in criminal intent may be inferred from

presence, companionship and conduct before and after the offense is

committed.’ ” Id. at 245, 754 N.E.2d 796, quoting State v. Pruett, 28 Ohio

App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). “The court must view the

evidence in the light most favorable to the prosecution and defer to the trier of

fact on questions of credibility and the weight assigned to the evidence. State v.

Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 146.” State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.

McFarland at ¶ 29.

{¶ 64} R.C. 2903.01(A), aggravated murder, provides that “[n]o person shall

purposely, and with prior calculation and design, cause the death of another.” “The

element of prior calculation and design ‘require[s] a scheme designed to implement

the calculated decision to kill.’ ” Id. at ¶ 31, quoting State v. Cotton, 56 Ohio St.2d 8,

11, 381 N.E.2d 190 (1978). “A person acts purposely when it is the person's specific

intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is the offender's specific intention to engage in conduct of that

nature.” R.C. 2901.22(A).

{¶ 65} There is substantial support in the record that the Chrysler was in the immediate

vicinity of the Burten Center during the shooting. The shooter followed the route taken

by the victim into the area that the victim had just exited and shot Doe whom CPD

believe was mistaken for the victim. Witness Terrell testified that the victim called

someone on his cell phone and asked where the bike had been left as he exited her car.

The cell phone evidence confirmed that the call was made to the 9510 cell phone

number. The cell phone evidence also established that the owner of the Chrysler and

the 9510 number made calls to each other the day of the shooting. Shepard's DNA

was found on the handles of the bike.

{¶ 66} The CMHA motion-activated video excerpts showed the dirt-bike rider

entering eastbound into the area followed by a dark SUV that waited for the rider. The

Chrysler appeared from the opposite direction and stopped by the black SUV. The

drivers’ sides of the vehicles were aligned for a few moments, then the Chrysler pulled

off.

{¶ 67} The rider approached from behind the trees heading east toward the black SUV

as the Chrysler entered the picture heading west and slowly backed up with the rider

walking alongside the Chrysler's passenger side. They stopped and interacted briefly,

and the rider gestured to the area where the bike was left. The rider entered the black

SUV and departed. The Chrysler drove out of view, returned heading eastbound,

parked in front of the place that the bike had been left, and turned off its lights.

{¶ 68} Witness Terrell's vehicle entered heading eastbound and stopped in the middle

of the street to the left of the parked Chrysler facing west. The victim exited as he

asked the individual on the cell phone where the bike was located. The motion-

activated camera showed the victim quickly cross the street in front of Terrell's car

and behind the parked Chrysler to get the bike. The shooter immediately followed and

began firing. The shooting stopped, and the Chrysler pulled away.

{¶ 69} Shepard argues that the state's case was based on mere speculation and

circumstantial evidence and that mere presence at the scene is not enough to establish

complicity. “Participation in criminal intent may be inferred from presence,

companionship, and conduct before and after the offense is committed.” Gardner, 8th

Dist. Cuyahoga No. 111506, 2023-Ohio-307, at ¶ 35, quoting State v. Cartellone, 3

Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981), quoting State v. Pruett, 28

Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). Additionally, “[a]iding and

abetting may be shown by both direct and circumstantial evidence.” Id., citing State

v. High, 2018-Ohio-2236, 115 N.E.3d 702, ¶ 23 (8th Dist.).

{¶ 70} The trial court properly instructed the jury on the definitions of circumstantial

and direct evidence. The jury was also informed:

It is your job to decide how much weight to give to the direct and the

circumstantial evidence. The law makes no distinction between the weight that

you should give to either one, nor does it say that one is any better evidence than

the other. You should consider all of the evidence, both direct and circumstantial,

and give it whatever weight that you believe it deserves.

Tr. 814.

{¶ 71} We add that this court has held:

“To be convicted as an aider and abettor such person must: (1) engage in an overt

act ‘with a view’ towards producing the result for which he [or she] is held; and

(2) such person must himself [or herself] possess the felonious intent that the

principal possesses.” State v. Boigner, 8th Dist. Cuyahoga No. 34514, 1976 WL

190781, 3, 1976 Ohio App. LEXIS 7630, 3 (Mar. 25, 1976), citing Woolweaver

v. State, 50 Ohio St. 277, 288, 34 N.E. 352 (1893). “It is not necessary that the

accused be in a position to foresee the precise consequence of his [or her]

conduct; only that the consequence be foreseeable in the sense that what actually

transpired was natural and logical in that it was within the scope of the risk

created by his [or her] conduct.” State v. Losey, 23 Ohio App.3d 93, 95-96, 23,

491 N.E.2d 379 (10th Dist.1985).

Gardner at ¶ 33.

{¶ 72} Viewing the evidence in a light most favorable to the prosecution and giving

due deference to the trier of fact on questions of credibility and adequacy, this court

does not find that the evidence in this case was insufficient as a matter of law to

support the elements of complicity to aggravated murder. This court also does not find

that this is the exceptional case where the jury clearly lost its way. The weight of the

evidence supports the conviction.

(ECF No. 8-1, Exhibit 8).

As I noted above, I am troubled by the strength of the evidence against Mr. Shepard

and the extent to which the State was able to present its case through speculative testimony

from detectives and other witnesses. While the State showed that Mr. Shepard rode the

victim’s bike to the scene of the murder, virtually everything else about the State’s theory is

a matter of at least some dispute, including whether Mr. Shepard spoke to anyone on the

phone that night; what, if anything, he said to the unknown individuals in the Chrysler; the

identity of the owner of the Chrysler and whether the car belonged to Mr. Bilal; whether Mr.

Bilal and Mr. Greathouse were involved in the murder; what relationship Mr. Shepard had

with Mr. Bilal and Mr. Greathouse; and whether Mr. Shepard knew that the unknown

principals intended to murder the victim. Given those gaps in the evidentiary record, I believe

a reasonable juror could conclude that the evidence was insufficient as a matter of law to

convict Mr. Shepard of complicity.

Applying the double layer of deference under AEDPA, however, I cannot say either

that the evidence was insufficient for a rational trier of fact to find Mr. Shepard guilty or that

the Eighth Appellate District’s sufficiency determination was unreasonable. As an initial

matter, while Mr. Shepard correctly notes that there was no direct evidence linking him to the

murder, “[a] conviction may be sustained based upon nothing more than circumstantial

evidence.” Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008). In addition, “it is the

responsibility of the jury — not the court — to decide what conclusions should be drawn from

evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Jackson

“unambiguously instructs that a reviewing court ‘faced with a record of historical facts that

supports conflicting inferences must presume —even if it does not affirmatively appear in the

record—that the trier of the fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” Id. at 7 (quoting Jackson, 443 U.S. at 326).

As the Eighth Appellate District found, the circumstantial evidence in this case

included: (1) fingerprint evidence tying Mr. Shepard to the victim’s dirt bike, which the State

alleged was used to lure the victim to the scene of the murder; (2) video evidence showing an

individual likely to be Mr. Shepard riding the bike to the scene of the murder; (3) testimony

that the victim asked an unknown individual on the telephone where his bike was shortly

before he was murdered; (4) telephone records showing that Mr. Shepard called phone

numbers from prison that were connected to a cell phone that also communicated with the

victim; (5) the detectives’ testimony regarding Mr. Bilal and Mr. Greathouse, Mr. Bilal’s

potential (though disputed) ownership of the Chrysler, and Mr. Shepard’s alleged

involvement with both individuals; and (6) surveillance video evidence showing that an Mr.

Shepard appeared to speak to individuals in the Chrysler and to point out the location of the

bike.

That evidence was far from ironclad. Under Jackson, however, the question is whether

any rational trier of fact could have found Mr. Shepard guilty of complicity based on it. I

conclude that the evidence here clears that low bar. See Stewart v. Wolfenberger, 595 F.3d

647, 655-58 (6th Cir. 2010) (rejecting sufficiency of the evidence challenge to aiding and

abetting conviction even though petitioner was not present at time of crime and there was no

evidence that petitioner knew principals intended to rob specific individual or that murder

would be committed). Even if I did not, the Eighth Appellate District’s contrary holding was

not unreasonable.

Mr. Shepard also argues that his conviction resulted from “emotionally charged

speculation and testimony that should have been limited, [but] regrettably was not . . . .” (ECF

No. 11, PageID # 1149). However, “‘a reviewing court must consider all of the evidence

admitted by the trial court,’ regardless of whether that evidence was admitted erroneously.”

McDaniel v. Brown, 558 U.S. 120, 131 (2010) (quoting Lockhart v. Nelson, 48 U.S. 33, 41

(1988)); see also Sanborn v. Parker, 629 F.3d 554, 578 (6th Cir. 2010). “This is because ‘[i]t

is impossible to know what additional evidence the government might have produced had the

faulty evidence been excluded at trial, or what theory the government might have pursued had

the evidence before the jury been different . . . .’” Hendrix v. Palmer, 893 F.3d 906, 928 (6th

Cir. 2018) (quoting United States v. Quinn, 901 F.2d 522, 530 (6th Cir, 1990)). Moreover,

“‘[i]t would prolong trials unduly to adopt a rule that would require the government to

introduce all available evidence and assert every possible legal theory in anticipation of

reversal of trial court rulings admitting evidence.’” Id. (quoting Quinn, 901 F.2d at 531).

The question, then, is not whether detectives and other witnesses were impermissibly

allowed to speculate regarding Mr. Shepard’s relationship with Mr. Bilal and Mr. Greathouse

or their involvement in the crime. The question is whether, given that testimony and the other

evidence presented at trial, a rational trier of fact could have found Mr. Shepard guilty of

complicity as a matter of law. While the evidence against Mr. Shepard was not overwhelming,

the Eighth Appellate District did not err in answering that question in the affirmative.

I acknowledge, however, that this case is closer than many habeas sufficiency of the

evidence challenges. As Ohio Supreme Court Justice Donnelly noted in dissent, there is a

potential “concern[] that speculation in this case has been mistaken for circumstantial

evidence and that [Mr.] Shepard has received a life sentence based solely on that speculation.”

(ECF No. 8-1, Exhibit 12, ¶ 9). Accordingly, I also recommend that the Court grant Mr.

Shepard a certificate of appealability with respect to his third ground for relief.

VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY

A. Legal Standard

As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not

appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate

of appealability. The statute further provides that “[a] certificate of appealability may issue .

. . only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Although the statute does not define what constitutes a “substantial showing” of a

denial of a constitutional right, the burden on the petitioner is obviously less than the burden

for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “[a] ‘substantial showing’ requires

the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the questions are adequate to deserve

encouragement to proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that

certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).

Rule 11 of the Rules Governing Section 2254 Cases in the United States District

Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),

28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue

or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C.

§ 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which

specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule

11 requirement that the court either grant or deny the certificate of appealability at the time

of its final adverse order, a recommendation regarding the certificate of appealability issue is

included here.

B. Analysis

While I conclude that Mr. Shepard procedurally defaulted on his first two grounds for

relief and that all three grounds fail on the merits, jurists of reason could debate those

conclusions given Mr. Shepard’s references to federal constitutional law in his appellate brief

before the Eighth Appellate District and the fact that much of the evidence against him came

through testimony from detectives and other witnesses that was arguably both speculative

and hearsay. Accordingly, I recommend that the Court grant Mr. Shepard a certificate of

appealability with respect to each of his grounds for relief.

VII. RECOMMENDATION

For the foregoing reasons, I recommend that the Court dismiss and/or deny Mr.

Shepard’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend that

the Court grant him a certificate of appealability with respect to each of his grounds for relief.

Dated: April 23, 2026 /s/Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b)

within fourteen (14) days after being served with a copy thereof, and

failure to file timely objections within the fourteen (14) day period

shall constitute a waiver of subsequent review, absent a showing of

good cause for such failure. Such party shall file with the Clerk of Court,

and serve on the Magistrate Judge and all parties, written objections which

shall specifically identify the portions of the proposed findings,

recommendations, or report to which objection is made and the basis for

such objections. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The

District Judge to whom the case was assigned shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge. The District Judge need conduct a new hearing only in

such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the

Magistrate Judge with instructions.

Id. (emphasis added).

Failure to file objections within the specified time may result in the forfeiture or

waiver of the right to raise the issue on appeal either to the district judge or in a subsequent

appeal to the United States Court of Appeals, depending on how or whether the party responds

to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).