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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CARL FANARO, 

 Case No. 2:10-cv-1002 

 Petitioner, JUDGE GREGORY L. FROST 

 Magistrate Judge Norah McCann King 

 v. 

FRANCISCO PINEDA, WARDEN, 

 Respondent. 

ORDER 

 On November 22, 2013, following an evidentiary hearing, the Magistrate Judge 

recommended that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed. 

(ECF No. 94.) Petitioner has filed objections to that recommendation. (ECF No. 99.) 

Respondent has filed a reply memorandum. (ECF No. 103.) For the reasons that follow, the 

Court OVERRULES Petitioner’s objections, ADOPTS and AFFIRMS the Report and 

Recommendation, and DISMISSES this action. 

 This case involves Petitioner’s conviction after a jury trial in the Licking County Court of 

Common Pleas on 99 counts of a 134-count indictment involving the sale of alleged securities.1

The trial court imposed an aggregate term of 19 years imprisonment. After an evidentiary 

hearing on Petitioner’s claim that he was denied effective assistance of counsel because his 

attorney failed to counsel him on the advisability of proceeding to trial and the potential 

 

1

 The indictment charged the sale of unregistered securities, the sale of securities without a license, 

fraudulent practices in the sale of securities, false representations in the sale of securities, receipt of stolen property, 

and engaging in a pattern of corrupt activity. The State moved to dismiss eight counts shortly before trial and the 

jury could not reach a unanimous verdict on the charges of receipt of stolen property. See Exhibits 6, 7 to Return of 

Writ. 

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sentencing ramifications of doing so, the Magistrate Judge recommended that this claim be 

denied.2

 Petitioner objects to that recommendation. 

 Petitioner claims that, had his trial attorney properly advised him of the strength of the 

State’s case against him and of the potential sentence that he faced upon conviction after trial, he 

would not have proceeded to trial but would have entered a guilty plea pursuant to either of two 

offers made by the State. Petitioner argues that he would have considered a guilty plea, but for 

his attorney’s misunderstanding of the applicable law requiring a license to sell even an exempt 

security, his attorney’s unreasonable advice regarding his chance of acquittal at trial, and his 

attorney’s failure to advise Petitioner that he faced a maximum potential sentence of 678 years in 

prison. 

Petitioner objects to the Magistrate Judge’s factual finding that Petitioner refused to 

consider any plea offer that required the payment of restitution as contrary to the evidence; he 

also objects to the Magistrate Judge’s credibility determinations. Finally, Petitioner objects to 

the Magistrate Judge’s conclusion that Petitioner failed to meet the prejudice component of

Strickland v. Washington 466 U.S. 668 (1984). Referring to another case in the Licking County 

Court of Common Pleas and to testimony at the evidentiary hearing, Petitioner argues that, had 

he pleaded guilty, the trial court would have imposed a substantially lower sentence than the 19 

years actually imposed. 

 Having conducted a de novo review pursuant to 28 U.S.C. § 636(b) and Federal Rule of 

Civil Procedure 72(b), the Court concludes that Petitioner’s objections are without merit. As 

discussed in detail in the Report and Recommendation, the record establishes that Petitioner was 

aware that he faced what was in essence a life sentence should he be convicted at trial. Nothing 

 

2

 The Magistrate Judge also recommended the dismissal of claims four through six, a recommendation to 

which Petitioner does not object.

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in the record suggests that Petitioner would have obtained a substantially reduced sentence had 

he entered a guilty plea. Like the Magistrate Judge, this Court is not persuaded that the initial 

discussions between defense counsel and the assistant Licking County prosecutor—i.e., a plea of 

guilty to unspecified charges in exchange for a sentence of four years’ imprisonment—

constituted a formal plea offer. Nor is the Court persuaded that the trial judge would have agreed 

to a minimum concurrent sentence. Moreover, the terms of a plea offer later made by the special 

prosecutor would have required Petitioner to admit his guilt to numerous fraud charges and 

would have exposed Petitioner to a possible sentence of even greater length. See, e.g.,

Evidentiary Hearing Transcript, Vol. I, ECF No. 85, at Page ID # 4557-58, 4629. Particularly is 

this so in light of the fact that the prosecution was “pushing for maximum jail-time.” Id. at Page 

ID # 4628. In short, this Court agrees with the Magistrate Judge’s conclusion that Petitioner did 

not establish prejudice. The Court also agrees with the credibility determinations made by the 

Magistrate Judge and finds no reason to reject those findings. 

 For all of these reasons, and for the reasons already well detailed in the Magistrate 

Judge’s Report and Recommendation, the Court OVERRULES Petitioner’s Objections (ECF 

No. 99), ADOPTS and AFFIRMS the Report and Recommendation (ECF No. 94), and 

DISMISSES this action. The Clerk shall enter FINAL JUDGMENT in favor of Respondent. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost____________ 

GREGORY L. FROST 

UNITED STATES DISTRICT JUDGE 

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