IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARL FANARO, 

Petitioner, 

CASE NO. 2:10-CV-1002

Judge Frost

v. Magistrate Judge King

FRANCISCO PINEDA, WARDEN, 

Respondent.

OPINION AND ORDER

Petitioner was convicted following a jury trial in Licking County of 99 felony counts in

connection with the sales of securities and was sentenced to a total aggregate sentence of 19 years

in prison. State v. Fanaro, No. 2006CA00168, 2008 WL 555448, at *1 (Ohio App. 5th Dist. Feb. 21,

2008). Had Petitioner accepted the State’s plea offer, he would have pled guilty to two counts for

each victim, in exchange for which he would be sentenced to a term of imprisonment of four years

plus restitution. See id. In this habeas corpus action instituted under the provisions of 28 U.S.C. §

2254, Petitioner asserts the following claims: 1) he was denied the effective assistance of counsel

because his attorney rejected the State’s plea offer to a four year term of incarceration without first

consulting with Petitioner regarding the evidence against him or the benefits and risks of accepting

or rejecting the guilty plea offer; 2) he was denied the effective assistance of counsel because his

attorney rejected the State’s offer, to plead guilty to two counts in connection with each victim and

restitution, without first consulting with Petitioner; 3) he was denied the effective assistance of

counsel because his attorney failed to consult with Petitioner regarding the advisability of accepting

or rejecting the guilty plea offer in exchange for a sentence of four years; 4) he was denied the

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 1 of 12 PAGEID #: <pageID>
effective assistance of appellate counsel because his attorney failed to provide notice to the Ohio

Court of Appeals of the pending decision in Cabrales; 5) he was sentenced in violation of the

Double Jeopardy Clause and; 6) he was sentenced in violation of Blakely v. Washington, 542 U.S.

296 (2004).

On February 3, 2012, the Magistrate Judge recommended an evidentiary hearing on

Petitioner’s claim that he was denied effective assistance of counsel because his attorney failed to

advise him on the decision to proceed to trial and the potential sentencing ramifications that he faced

following trial. Report and Recommendation, Doc. No. 28. The Magistrate Judge also

recommended that the remainder of Petitioner’s claims of ineffective assistance of trial counsel be

dismissed as without merit, and that consideration of habeas corpus claims four through six be

deferred pending the evidentiary hearing. Id. Both Petitioner and Respondent have filed objections

to that recommendation. Objection, Doc. No. 31; Objection, Doc. No. 34. 

For the reasons that follow, Respondent’s objections are OVERRULED. Petitioner’s

objections are OVERRULED, in part, and SUSTAINED, in part. 

The Report and Recommendation is ADOPTED and AFFIRMED. The Magistrate Judge

will hold an evidentiary hearing on Petitioner’s claim that he was denied the effective assistance of

counsel because his attorney failed to properly advise him on whether or not he should proceed to

trial and of the potential sentencing ramifications that he faced should he do so. At the evidentiary

hearing, the parties may submit evidence, whether or not that evidence was actually presented to the

state courts, in connection with this claim. The remainder of Petitioner’s claims of ineffective

assistance of counsel are DISMISSED. Consideration of habeas corpus claims four through six will

be deferred pending the evidentiary hearing. 

2

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 2 of 12 PAGEID #: <pageID>
Petitioner’s Objections: 

Petitioner objects to the Magistrate Judge’s recommendation that the Court dismiss his

claims of ineffective assistance of counsel based on his attorney’s alleged failure to consult with him

prior to rejecting the State’s plea offers and failure to review discovery or investigate prior to trial. 

Petitioner argues that these claims are so closely connected to his claim that defense counsel failed

to advise him of the strength of the government’s case and of his potential sentencing ramifications

that they should be considered with that claim at the evidentiary hearing. In support of this

argument, Petitioner contends that, because his attorney failed to familiarize himself with the facts

of and law governing the case, counsel was unable to advise him to accept the plea offers – i.e., the

proper course of action in view of the overwhelming evidence of guilt and lack of any viable

defense. In this respect, Petitioner urges the Court to review the trial transcript in its entirety. 

Petitioner also objects to the Magistrate Judge’s denial of his motion to expand the record to include

seven boxes of discovery material and to consider the affidavits of Attorneys Thomas F. Hayes and

Dwight Hurd. 

The Court is not persuaded that all of Petitioner’s claims of ineffective assistance of trial

counsel are so closely related that they should be considered together at an evidentiary hearing. The

record refutes Petitioner’s allegation that defense counsel failed to notify him of the State’s plea

offers prior to Petitioner’s rejection of those offers. The record likewise fails to support Petitioner’s

allegations that he was unable to accept a plea offer or to direct that his attorney do so, or that his

attorney acted in a constitutionally unreasonable manner at trial. See Report and Recommendation,

pp. 14, 26. 

However, Petitioner’s allegation that his attorney failed to properly advise him regarding the

3

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 3 of 12 PAGEID #: <pageID>
strength of the government’s case and the advisability of accepting the plea offers, particularly in

view of the likely sentence that he faced, also involves Petitioner’s allegation that defense counsel

either did not sufficiently review discovery materials or did not understand the applicable law. 

Nothing in this order will preclude Petitioner from raising these allegations in connection with the 

claim of ineffective assistance of counsel that will be considered at the evidentiary hearing. See

Lafler v. Cooper, – U.S. –, 132 S.Ct. 1376, 1386 (2012)(even an error-free trial cannot cure the

ineffective assistance of counsel in failing to properly advise a client during the plea negotiations

phase).

Petitioner also objects to the Magistrate Judge’s conclusion that certain evidence cannot be

considered at the anticipated evidentiary hearing because that evidence was not presented to the state

courts. This Court sustains Petitioner’s objection in this regard. Petitioner represents that he

presented seven boxes of discovery to the state courts in post conviction proceedings in support of

his claim of ineffective assistance of counsel.1

 The record indicates that Petitioner referred to these

materials and provided an index to these documents. Additionally, Petitioner submitted the

affidavit of Attorney Thomas F. Hayes. See Supplemental Memorandum Supporting Return of Writ,

Doc. 10, Exhibit 24 Part B. These materials, therefore, may properly be considered by this Court. 

See Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir. 2012)(quoting Cullin v. Pinholster, – U.S.

–, 131 S.Ct. 1388, 1389 (2011))(Where a claim has been adjudicated on the merits by a state court,

federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the record before the state court). 

1

 Respondent opposes Petitioner’s request to expand the record with this material, arguing that Petitioner

failed to make this evidence a part of the state court record. Respondent’s Response to Petitioner’s Objections, Doc.

38, at 17. 

4

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 4 of 12 PAGEID #: <pageID>
Petitioner acknowledges that he did not present the affidavit of Dwight Hurd to the state

appellate court; however, he referred to Hurd’s involvement in support of his claim, as did trial

counsel and Petitioner’s wife, in affidavits submitted to the state appellate court. Petitioner

represents that he would have presented the testimony of this witness had the state appellate granted

his request for an evidentiary hearing. Petitioner’s Objections, Doc. 34, at 10-11. 

Respondent objects to the Magistrate Judge’s recommendation that an evidentiary hearing

be held and specifically objects to consideration of any of the foregoing materials and evidence at

any such evidentiary hearing, arguing that all of Petitioner’s claims should be dismissed as without

merit or as procedurally defaulted based upon the record before the state appellate court. See

Respondent’s Response to Petitioner’s Objections, Doc. 38. 

Under the Antiterrorism and Effective Death Penalty Act, a federal habeas court does not

function as an alternative forum for resolving those facts and issues that a state criminal defendant

failed to properly pursue in state proceedings. Cullen v. Pinholster, 131 S.Ct. at 1401. When the

merits of a claim have been adjudicated in the state courts, a federal habeas court’s review under 28

U.S.C. §2254(d)(1)2

 is “backward-looking,” i.e., the federal court must examine the state court’s

decision at the time it was made and in light of the record then before the state court. Id. at 1398. 

Here, proper resolution of Petitioner’s claim of ineffective assistance of counsel based on his

2

 28 U.S.C. 2254(d)(1) provides: 

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[.] 

5

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 5 of 12 PAGEID #: <pageID>
attorney’s allegedly inadequate advice during plea negotiations necessarily requires a credibility

determination between competing factual assertions.3 However, the state courts failed to hold a

hearing at which such a credibility determination could be made. Instead, the state appellate court

rejected Petitioner’s claim after discounting Petitioner’s affidavit and concluding that Petitioner had

failed to “set forth sufficient operative facts to establish substantive grounds for relief, let alone a

reasonable probability” that he would have accepted the state’s plea offer. State v. Fanaro, No.

2009 CA 00066, 2009 WL 4690421, at *4-5 (Ohio App. 5th Dist. Dec. 4, 209). In ignoring the

factual dispute and in reaching this conclusion, the state court unreasonably applied clearly

established law under 28 U.S.C. § 2254(d)(1). See Lafler v. Cooper, 132 S.Ct. at 1376; Missouri

v. Frye, – U.S. –, 132 S.Ct. 1399 (2012); Hill v. Lockhart, 474 U.S. 52 (1985). Under these

circumstances, this Court is not limited, at the evidentiary hearing to be held on Petitioner’s claim,

to the evidence presented to but not considered by the state court. See Conway v. Houk, 2011 WL

2119373, at *3 (S.D. Ohio May 26, 2011)(if, considering only the evidence before the state court,

the state court’s decision contravened or unreasonably applied federal law, a federal court may

consider additional evidence to determine whether habeas corpus relief should issue)(citing Skipwith

v. McNeil, No. 09-60361, 2011 WL 1598829, at *5 (S.D. Fla. April 28, 2011); Hearn v. Ryan, et al.,

No. CV 08-448-PHX-MNM, 2011 WL 1526912, at *2 (D.Ariz. April 21, 2011)). See also Ballinger

v. Prelesnik, – F.Supp.2d –, 2012 WL 591931, *8 (E.D. Mich. Feb. 23, 2012)(state court

3

In discussing the appropriate remedy in connection with a claim such as that raised by Petitioner, the

United States Supreme Court in Lafler v. Cooper, – U.S. –, 132 S.Ct. at 1389, recognized the necessity of an

evidentiary hearing to determinate whether a defendant can establish that, but for his attorney’s inadequate advice,

he would have accepted the plea agreement: “[T]he court may conduct an evidentiary hearing to determine whether

the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the

showing is made, the court may exercise discretion in determining whether the defendant should receive the term of

imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” 

6

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 6 of 12 PAGEID #: <pageID>
unreasonably applied federal law where it was impossible to adjudicate the claim based on the

record available); Washington v. Beard, 2012 WL 1033526 (E.D. Pa. March 28, 2012)(holding that

Pinholster authorizes an evidentiary hearing with additional evidence when a state court assumes

the truth of a particular allegation). Cf. Johnson v. Finn, 665 F.3d 1063, 1068 (9th Cir. 2011)(rule

of deference under the AEDPA does not apply where state court’s adjudication of claim is

“dependent on an antecedent unreasonable application of federal law”)(quoting Panetti v.

Quarterman, 551 U.S. 930, 953 (2007)).

For all these reasons, Petitioner’s objections are DENIED, in part, and SUSTAINED, in part

consistent with the foregoing. 

Respondent’s Objections: 

Respondent objects to the Magistrate Judge’s recommendation that an evidentiary hearing

be held. In particular, Respondent disputes the Magistrate Judge’s conclusion that the state appellate

court’s decision contravened or unreasonably applied federal law, as required by 28 U.S.C.

2254(d)(1), because the Supreme Court has never held that a habeas petitioner may rely on his own

self-serving affidavit to support the sort of claim asserted in this action. See also Bray v. Andrews,

640 F.3d 731, 738 (6th Cir. 2011)(It was not unreasonable for Ohio court of appeals to determine on

direct appeal that subjective statements made by defendant and her attorney at sentencing, standing

alone, were insufficient to establish a reasonable probability that defendant would have accepted the

plea offer). Respondent’s Objections, at 18-22. Respondent also objects to the Magistrate Judge’s

finding that the resolution of Petitioner’s claim requires a credibility determination. Id. at 25. In

any event Respondent argues that Pinholster precludes consideration by this Court of any evidence

7

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 7 of 12 PAGEID #: <pageID>
not considered by the state courts. Finally, Respondent objects to the Magistrate Judge’s conclusion

that neither claim two nor claim five had been procedurally defaulted. 

For the reasons discussed in the Court’s consideration of Petitioner’s objections,

Respondent’s objections fail to persuade this Court. Bray v. Andrews, 640 F.3d at 731, is not

analogous to this case. In Bray, the petitioner raised her claim of ineffective assistance of counsel

on direct appeal rather than in post conviction proceedings. The only evidence before the state

courts in support of Bray’s claim were statements that Bray and her attorney had made at sentencing. 

Id. at 738. In denying petitioner’s claim on this “sparse record,” the Sixth Circuit noted that, had

Bray pursued her claim in post conviction proceedings, she could have presented additional evidence

in support of her claim. Id. at 749. Of course, that is precisely the procedure followed by Petitioner,

but the state court refused to consider the evidence presented by Petitioner. Moreover, it is

undisputed that Petitioner was offered an agreement whereby he would plead guilty to two counts

for each victim, in exchange for which he would be sentenced to a term of imprisonment of four

years plus restitution. Instead, after proceeding to trial, Petitioner was convicted on 99 counts – 32

fifth degree felonies, 66 third degree felonies, and one first degree felony. The trial court imposed

a sentence of nineteen years in prison. This substantial disparity between the sentence contemplated

by the plea offer and the sentence actually imposed following trial also lends support to Petitioner’s

claim that, but for counsel’s errors, he would have accepted the state’s plea offer. See Smith v.

United States, 348 F.3d 545, 552 (6th Cir. 2003).

As to Respondent’s objection to the Magistrate Judge’s recommendation that claim two be

dismissed on the merits rather than as procedurally defaulted, this Court agrees that Petitioner

presented the claim to the state courts in post conviction proceedings. That claim was therefore 

8

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 8 of 12 PAGEID #: <pageID>
properly addressed on the merits in federal habeas corpus review. 

Respondent also objects to the Magistrate Judge’s conclusion that claim five, in which

Petitioner challenges his sentence on double jeopardy grounds, was not procedurally defaulted.4

Respondent had argued, inter alia, that Petitioner waived this claim by raising it only in the context

of an alleged violation of Ohio’s statute on allied offenses of similar import, O.R.C. 2941.25. For

the reasons detailed in the Magistrate Judge’s Report and Recommendation, p.11, this Court agrees

that a petitioner may fairly present a federal double jeopardy claim by presenting that claim to the

state courts in the context of an alleged violation of Ohio’s statute on allied offenses of similar

import under O.R.C. § 2941.25. See Spence v. Sheets, 675 F. Supp. 2d 792, 824-25 (S.D. Ohio

2009). 

Respondent had also argued that Petitioner waived claim five by failing to raise the issue in

his direct appeal to the Ohio Supreme Court. Petitioner instead raised this double jeopardy claim

in a motion for reconsideration in the Ohio Court of Appeals pursuant to Ohio Appellate Rule 26(A)

and presented the claim to the Ohio Supreme Court following the appellate court’s denial of his

motion. Petitioner also raised the claim in his Ohio Appellate Rule 26(B) proceeding alleging the

ineffective assistance of appellate counsel and he again presented that claim to the Ohio Supreme

Court following the appellate court’s denial of the Rule 26(B) proceeding.

Respondent argues that Petitioner waived his double jeopardy claim by presenting the claim

to the Ohio Supreme Court for the first time in an application for reconsideration under Ohio

Appellate Rule 26(A). Respondent correctly notes that the ineffective assistance of appellate

4

As noted supra, the Magistrate Judge recommended that consideration of this claim, and of certain other

claims, be deferred pending resolution of the issue to be addressed at the evidentiary hearing, reasoning that these

claims may be rendered moot by the outcome of the evidentiary hearing.

9

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 9 of 12 PAGEID #: <pageID>
counsel, raised in Petitioner’s habeas corpus claim four, cannot serve as cause for the failure to raise

a claim in the Ohio Supreme Court, because there is no constitutional right to counsel in those

proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)(right to counsel extends to the

first appeal of right and no further). However, the only case referred to by Respondent in support

of the argument that this claim was not properly raised in the Rule 26(A) proceedings is Gunner v.

Bradshaw, No. 1:09-cv-1444, 2010 WL 4272620 (N.D. Ohio Oct. 25, 2010). The facts of Gunner

are not analogous to those presented here. In Gunner, the United States District Court for the

Northern District of Ohio refused to consider an equal protection claim because the petitioner had

failed to fairly present the claim to the state appellate court in his direct appeal, and again failed to

present that or any other federal claim in his Rule 26(A) application. The court noted that Gunner’s

“cursory presentation” of the issue in his motion for reconsideration was not a “procedurally proper

vehicle to raise new arguments,” which were otherwise barred under Ohio’s doctrine of res judicata. 

See Gunner v. Bradshaw, No. 1:09-cv-1444, Report and Recommendation, Doc. 10, at 11 (N.D.

Ohio May 7, 2010). 

Here, in contrast, Petitioner argued in his Rule 26(A) application that State v. Cabrales, 118

Ohio St.3d 54 (2008),5 decided after Petitioner’s direct appeal and two days after he filed his brief

in the Ohio Supreme Court, required reversal of his convictions. See Exhibit 42 to Return of Writ. 

Thus, unlike the petitioner in Gunner, Petitioner in this case could not have raised this argument

5

 In State v. Cabrales, the Ohio Supreme Court certified a conflict between Ohio appellate courts regarding

the application of Ohio’s law on allied offenses of similar import, holding that its decision in State v. Rance, 85 Ohio

St.3d 632 (1999), had been misinterpreted in view of the Double Jeopardy Clause. See Cabrales, 118 Ohio St.3d at

59 n.2. The Ohio Supreme Court expressly held that a “strict textual comparison” of the elements of offenses was

not required to determine if those offenses should be merged for sentencing purposes. Id., syllabus at 4, abrogating

State v. Palmer, 148 Ohio App.3d 246 (2002).

10

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 10 of 12 PAGEID #: <pageID>
earlier, nor did he completely fail to raise the issue in his direct appeal. The state appellate court

declined to address Petitioner’s claim in the Rule 26(A) proceedings, reasoning that it had

previously considered the issue on direct appeal based on Ohio law as it existed at the time of

Petitioner’s appeal. Exhibit 44 to Return of Writ, Doc. No. 12. Rather, the state appellate court

advised, Petitioner should raise this claim in a “motion to reopen, alleging that counsel was

ineffective for failing to alert this Court to the fact that Cabrales was pending before the Ohio

Supreme Court.” Id. That, of course, is precisely what Petitioner did. Exhibit 36 to Return of Writ. 

The claim was thereafter presented to the Ohio Supreme Court, which dismissed Petitioner’s appeal

from the appellate court’s denial of Petitioner’s Rule 26(B) application. Exhibit 41 to Return of

Writ. This Court has been unable to locate, nor does the Respondent refer to, any case standing for

the proposition that a petitioner waives a claim for federal habeas corpus review under these

particular facts. Respondent’s objection in this regard is therefore OVERRULED. 

For all these reasons, Respondent’s objections are OVERRULED.

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. After careful

consideration of the entire record, Petitioner’s objections are OVERRULED, in part, and

SUSTAINED. Respondent’s objections are OVERRULED. 

The Report and Recommendation is ADOPTED and AFFIRMED. The Magistrate Judge

will hold an evidentiary hearing on Petitioner’s claim that he was denied the effective assistance of

counsel because his attorney failed to properly advise him on whether or not he should proceed to

trial and of potential sentencing ramifications he faced should he do so. Because this Court

concludes that the state courts unreasonably applied or contravened federal law in rejecting this

11

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 11 of 12 PAGEID #: <pageID>
claim, Petitioner may present new or additional evidence in support of this claim at the evidentiary

hearing. The remainder of Petitioner’s claims of ineffective assistance of counsel are DISMISSED.

Consideration of habeas corpus claims four through six is deferred pending completion of the

evidentiary hearing.

 /s/ Gregory L. Frost 

GREGORY L. FROST

United States District Judge

 

12

Case: 2:10-cv-01002-GLF-NMK Doc #: 40 Filed: 05/21/12 Page: 12 of 12 PAGEID #: <pageID>