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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CARL FANARO, 

 

 Petitioner, 

 Case No. 2:10-CV-1002 

 v. Judge Frost 

Magistrate Judge King 

FRANCISCO PINEDA, WARDEN, 

 Respondent. 

ORDER AND 

REPORT AND RECOMMENDATION 

Petitioner filed this petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. Petition, Doc. No. 1. The Petition

alleged that Petitioner is in the custody of the Respondent in 

violation of the Constitution of the United States on the following 

grounds: 1) he was denied the effective assistance of trial counsel 

because his attorney rejected the State’s initial plea offer, which 

would have required 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 offer; 2) he was 

denied the effective assistance of trial counsel because his attorney 

rejected the State’s subsequent offer, which would have required pleas 

of guilty to two counts for each victim and restitution, without first 

consulting with Petitioner and without counseling Petitioner about the 

strength of the case against him or about the risks of proceeding to 

trial; 3) he was denied the effective assistance of trial counsel 

because his attorney failed to counsel Petitioner regarding the 

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advisability of accepting or rejecting the plea offers; 4) he was 

denied the effective assistance of appellate counsel because his 

attorney (who was not his trial attorney) failed to notify the Ohio 

Court of Appeals of the pendency in the Ohio Supreme Court of a case 

involving Ohio’s statute regarding allied offenses of similar import; 

5) his sentence violated the Double Jeopardy Clause and; 6) he was 

sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), 

and Blakely v. Washington, 542 U.S. 296 (2004). 

On May 21, 2012, the Court dismissed Petitioner’s claims of 

ineffective assistance of trial counsel except “Petitioner’s claim 

that he was denied 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.” Opinion and Order, Doc. No. 40. As to that 

claim, the Court directed that an evidentiary hearing be held. Id. 

Consideration of Petitioner’s remaining habeas corpus claims was 

deferred pending the evidentiary hearing. Id. The evidentiary hearing 

was held and the parties have submitted post-hearing memoranda.1

 For 

the reasons that follow, it is RECOMMENDED that the petition for a 

writ of habeas corpus be DISMISSED. 

I. Facts and Procedural History 

The facts and procedural history of this case have previously 

been recounted in detail, Report and Recommendation, Doc. No. 28, and 

will only be summarized here. This case involves Petitioner’s 

                                                            

1 On Petitioner’s motion, Doc. No. 82, to which Respondent has made partial 

objection, see Doc. No. 83, Petitioner’s Exhibits 1-7, 9, 10A, 10B, 12A, 12B, 

13-15, 17 and 19 are ADMITTED into the record. 

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convictions after a jury trial in the Licking County Court of Common 

Pleas on 99 counts involving the sale of unregistered securities, sale 

of securities without a license, fraudulent practices in the sale of 

securities, false representation in the sale of securities, and 

engaging in a pattern of corrupt activity.2

 Petitioner was sentenced 

to an aggregate prison term of 19 years plus restitution. On February 

21, 2008, the Ohio Fifth District Court of Appeals affirmed 

Petitioner’s convictions and sentence. State v. Fanaro, No. 

2006CA00168, 2008 WL 555448, at *5-6 (Ohio App. 5th Dist. Feb. 21, 

2008). On August 6, 2008, the Ohio Supreme Court dismissed 

Petitioner’s subsequent appeal. State v. Fanaro, 119 Ohio St.3d 1409 

(Ohio 2008). 

Petitioner thereafter pursued post-conviction relief; however, 

the state trial court denied the petition without a hearing. On 

December 4, 2009, the appellate court affirmed that judgment. State 

v. Fanaro, No. 2009CA00066, 2009 WL 4690421, at *1-2 (Ohio App. 5th 

Dec. 4, 2009). On March 24, 2010, the Ohio Supreme Court dismissed 

Petitioner's subsequent appeal. State v. Fanaro, 124 Ohio St.3d 1522 

(2010). 

On July 8, 2008, Petitioner sought reconsideration of the 

appellate court’s February 21, 2008, denial of his direct appeal in 

view of State v. Cabrales, 118 Ohio St.3d 54 (2008) (strict textual 

                                                            

2 Petitioner was charged in a January 2006 indictment with 134 counts involving 

alleged securities transactions. Shortly before the October 2006 trial, the 

State moved to dismiss eight counts. Exhibits 3, 4 to Return of Writ. The 

jury convicted Petitioner on 99 counts but could not reach a unanimous 

verdict on the remaining 27 counts of receiving stolen property, and those 

counts were subsequently dismissed. Exhibits 6, 7 to Return of Writ. 

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comparison of elements of offenses is not required to determine 

whether convictions constitute allied offenses of similar import). 

Exhibit 42 to Return of Writ. On May 11, the appellate court denied 

Petitioner’s application for reconsideration. Exhibit 44 to Return of 

Writ. On September 30, 2009, the Ohio Supreme Court dismissed 

Petitioner’s subsequent appeal. Exhibit 47 to Return of Writ. 

Petitioner filed an application to reopen his appeal pursuant to 

Ohio Appellate Rule 26(B), alleging that he had been denied the 

effective assistance of appellate counsel. Exhibit 36 to Return of 

Writ. On May 11, 2008, the appellate court denied that application. 

Exhibit 38 to Return of Writ. The Ohio Supreme Court dismissed 

Petitioner’s subsequent appeal from that denial. Exhibit 41 to Return 

of Writ. 

II. Ineffective Assistance of Counsel 

As noted supra, Petitioner alleges that he was denied the 

effective assistance of trial counsel because his defense attorney, 

Thomas Tyack, 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. Petitioner contends that Tyack grossly 

overestimated the odds of success at trial because he did not 

understand the law or the evidence against Petitioner and therefore 

could not properly advise Petitioner on whether it was in his best 

interest to plead guilty to any of the charges against him. 

Petitioner also contends that his attorney under-calculated 

Petitioner’s potential sentence should he be convicted at trial. 

Petitioner claims that, but for the unreasonable advice of his 

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attorney, he would not have proceeded to trial, but would have 

accepted the State’s guilty plea offer(s). 

A. Facts and Evidentiary Hearing 

A review of the decision of the Ohio Fifth District Court of 

Appeals affirming the trial court’s dismissal of Petitioner’s claims 

of ineffective assistance of trial counsel without an evidentiary 

hearing will assist in the resolution of Petitioner’s claim: 

On January 27, 2006, the Licking County Grand Jury indicted 

appellant on a total of 134 counts. The indictment 

included violations of R.C. 1707.44 for the sale of 

unregistered securities, the sale of securities without a 

license and false representation in the sale of securities. 

The indictment also included violations of R.C. 2913.51 for 

receiving stolen property and one count of engaging in 

pattern of corrupt activity in violation of R.C. 

2923.32(A)(1). 

. . . 

Appellant was found guilty of having committed 32 fifth 

degree felonies, 66 third degree felonies and one first 

degree felony. 

. . . 

On December 18, 2006, the trial court sentenced appellant 

to serve six months on each of the 32 fifth degree felonies 

and further ordered these sentences to run consecutively to 

each other for a total of 16 years. The trial court also 

ordered appellant to serve one year on three of the third 

degree felonies to run consecutively to each other for a 

total of three years. The trial court further ordered 

appellant to serve a five year sentence for the first 

degree felony conviction for engaging in a pattern of 

corrupt activity. Finally, the trial court ordered the 

fifth degree (16 year) and third degree felony (3 year) 

sentences to run consecutively to each other and all other 

sentences to run concurrently for a total aggregate 

sentence of 19 years. Appellant was further ordered to pay 

restitution and the costs of the action. The fines were 

waived. 

Appellant appealed his conviction and sentence in State v. 

Fanaro, 5th App. No.2006CA00168, 2008–Ohio–841. Appellant 

argued the trial court engaged in judicial fact finding in 

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sentencing and that the security violations were allied 

offenses of similar import and should have been merged. 

Finally, appellant argued the trial court erroneously 

allowed the introduction of other acts evidence. This 

Court affirmed the decision of the trial court. 

On September 17, 2007, the public defender's office filed a 

petition to vacate and set aside judgment and sentence 

pursuant to R.C. 2953.21. On September 19, 2007, the trial 

court scheduled the petition for “non-oral hearing” for 

October 17, 2007 at 8:00 A.M pursuant to Loc.R. 5. The 

State then filed a memorand[um] contra to the petition on 

September 28, 2007. 

On October 10, 2007, prior to the non-oral hearing, the 

trial court via Judgment Entry denied appellant's petition. 

On October 12, 2007, Mr. Pusateri, Appellant's present 

counsel, entered a notice of appearance and filed a motion 

for continuance of the non-oral hearing. On October 15, 

2007, Appellant's counsel filed a motion for status 

conference. The State responded with a memorand[um] contra 

appellant's motion for continuance of non-oral hearing. 

On November 9, 2007, Appellant filed a notice of appeal 

arguing the post-conviction petition was dismissed in 

advance of the non-oral hearing date assigned in the case. 

This Court reversed the decision of the trial court, and 

remanded the matter for further proceedings finding the 

trial court prematurely ruled on the petition for postconviction relief. 

On December 22, 2008, Appellant filed an amended petition 

for post-conviction relief in the trial court. Appellee 

filed a memorandum contra on January 23, 2009. Appellant 

filed a motion for summary judgment, or in the alternative, 

motion to conduct discovery on March 12, 2009. Appellee 

filed a memorandum contra summary judgment on March 23, 

2009. The trial court granted summary judgment in favor of 

Appellee and denied the petition without conducting an 

evidentiary hearing. 

. . . 

Appellant maintains counsel was ineffective in rejecting 

plea offers without consulting petitioner, rejecting plea 

agreements without adequately investigating the viability 

of a defense to the charges, and in failing in his duty to 

counsel Appellant regarding the advisability of accepting 

or rejecting a plea offer. Specifically, Appellant asserts 

[that,] had counsel properly instructed him he did not have 

a viable defense, he would have accepted the State's first 

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plea offer. Further, he alleges counsel summarily rejected 

two plea offers without consulting him. 

On December 22, 2008, Appellant filed his petition for 

post-conviction relief, attaching ten exhibits, including 

two letters from his trial counsel, a detailed billing 

statement of trial counsel, and affidavits supporting his 

petition. 

The State initially offered Appellant a four-year prison 

sentence, which Appellant maintains his counsel rejected 

without properly advising him. Second, the State demanded 

Appellant make restitution in exchange for a guilty plea to 

two counts for each victim. Appellant asserts his trial 

counsel summarily rejected the offer without consultation 

or proper advice. Appellant's only evidence as to the 

allegations is his own self-serving affidavit. 

In response, the State submits an affidavit of trial 

counsel averring he discussed the first plea offer with 

Appellant and advised him of the potential penalties. 

Counsel alleges Appellant summarily rejected the offer 

because he felt he did not belong in jail. The plea offer 

also involved restitution, which was unacceptable to 

Appellant due to his being financially incapable of 

restitution. Appellant and his wife had filed for 

bankruptcy in 2004, listing the victims at issue as 

creditors. 

On January 16, 2006, trial counsel sent a letter to the 

prosecutor indicating the initial plea offer of four years 

incarceration was not acceptable, but his client could be 

persuaded to enter an Alford plea to some sort of 

misdemeanor. The letter was copied to Appellant; 

indicating Appellant had knowledge of the offer and could 

have discussed the matter with counsel had it been 

inaccurate. Appellant did not do so. 

On October 3, 2006, trial counsel drafted a letter to 

Appellant indicating the trial was set to commence over a 

period of four days. In the second letter counsel explains 

the subsequent offer by the State involving a plea of 

guilty to two counts on each one of the alleged victims and 

restitution. Trial counsel informed Appellant he told the 

prosecutor it was an inferior deal to the first offer, and 

he was confident Appellant would not accept the offer. 

Accordingly, the letter contemplates Appellant's ability to 

inform counsel he would be willing to accept the offer. 

Again Appellant did not do so. 

Further, Appellant's claim [that] counsel was unprepared 

for trial was not substantiated by the record. Rather, the 

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record demonstrates a set fee agreement between Appellant 

and counsel rendering hourly documentation beyond the set 

fee irrelevant. A review of the record demonstrates 

counsel properly cross-examined witnesses, and presented 

witnesses on behalf of Appellant. 

Based upon the record and the evidence submitted in support 

[of] and in opposition to the motion, we conclude the trial 

court did not err in granting summary judgment in favor of 

the State without an evidentiary hearing as Appellant has 

not set forth sufficient operative facts to establish 

substantive grounds for relief, let alone a reasonable 

probability Appellant would have accepted the plea in light 

of his proclaimed opposition to jail and any restitution 

order. 

The judgment of the Licking County Court of Common Pleas is 

affirmed. 

State v. Fanaro, 2009 WL 4690421 (Ohio App. 5th Dist. Dec. 4, 2009). 

The pertinent facts in this case are the following: In August 

2005, the State of Ohio charged Petitioner with 52 felony counts of 

securities violations involving shares in limited partnerships. After 

his arrest in Florida, Petitioner retained Tyack, who first met with 

Petitioner on August 2, 2005. Affidavit of Thomas Tyack, Petitioner’s 

Exhibit 4, at ¶ 5. At a pretrial conference held on August 30, 2005, 

Petitioner was advised by the trial court that he faced a maximum 

sentence of 260 years’ incarceration and a fine of up to $520,000, 

plus an order of restitution. Petitioner’s Exhibit 2; Transcript, 

Evidentiary Hearing Vol. 1 (“Evid. Hrg. Transcrpt, Vol. 1”), Doc. No. 

85, PageID #4621. On August 31, 2005, Petitioner – who had been 

detained for 75 days - was released on bond and returned to his home 

in Florida. Id. 

Petitioner’s wife, Cheryl Fanaro, paid Tyack $25,000. Id., at

PageID #4675; Petitioner’s Exhibit 17; It was her understanding that 

$20,000 represented the attorney’s fee and $5,000 was intended to 

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enable Tyack to retain a securities expert. Id., at PageID #4672-74. 

See also Transcript, Evidentiary Hearing, Vol. 2 (“Evid. Hrg. 

Transcrpt., Vol. 2”), Doc. No. 86, PageID #4701. 

 Tyack credibly testified that he reviewed these initial charges 

with Petitioner and that Petitioner understood the charges against 

him. Id., at PageID #4620. Tyack and Petitioner also discussed 

Tyack’s opinion that, if Petitioner were convicted, “the Judge was 

going to send him to jail.” Id., at PageID #4560. 

Tyack and the assistant prosecutor then handling the case, David 

Mallett, discussed in “very general” terms the possibility of a guilty 

plea in exchange for a sentence of four years and an order of 

restitution. Evid. Hrg. Transcrpt., Vol. 1, PageID #4621-22. Those 

discussions did not, however, indicate which of the charges against 

Petitioner, if any, would be dismissed pursuant to such an agreement. 

Id., at PageID #4622. Tyack presented the offer to Petitioner but, 

Tyack testified, Petitioner was “adamant” that he would not plead 

guilty to a felony offense, did not want to serve any additional time 

in jail or prison, and had no money with which to pay restitution.

Id., at PageID #4623-24. Moreover, Petitioner had previously initiated 

a bankruptcy proceeding and had listed all of the alleged victims as 

creditors. Id., at PageID #4624. 

The Court credits Tyack’s testimony that it was Petitioner’s 

decision to reject this plea offer. However, Tyack persuaded 

Petitioner to make a counter proposal specifying the terms on which 

Petitioner would agree to enter a guilty plea. Id., at PageID #4624-

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25. Tyack conveyed that counter proposal to Mallett in a letter dated 

January 16, 2006, which was copied to Petitioner: 

In follow up to our telephone conversation of Friday, 

January 13, this will confirm my response to your offer of 

a felony plea for four (4) years incarceration. That is 

not acceptable. My client could be persuaded to enter an 

Alford plea to some sort of misdemeanor for the seventyfive (75) days he spent in jail before he was transferred 

up to Ohio. 

Petitioner’s Exhibit 6. Although Tyack expected further discussions 

with Mallett, Evid. Hrg. Transcrpt., Vol. 1, PageID #4614-15, 4642, 

Mallett made no response to Petitioner’s counter offer. Id., at PageID

# 4625.3

The State dismissed the 2005 case shortly thereafter. In a 

separate indictment filed just days after the Mallett proposal, 

Petitioner was charged with 134 felony counts involving securities 

violations.4

 The Office of the Ohio Attorney General, represented by 

its chief legal counsel Carol O’Brien, assumed prosecution of the 

case. Id., at PageID #4625-28; Petitioner’s Exhibit 7. Briefly, the 

State’s case against Petitioner required proof that Petitioner sold 

securities. Certain charges required that the securities were neither 

registered with the Ohio Division of Securities nor exempt from 

registration; other charges required evidence that Petitioner was not 

                                                            

3 According to Petitioner, he and Tyack discussed Mallett’s plea offer only by 

telephone and only after Tyack had rejected the offer. Evid. Hrg. 

Transcrpt., Vol. 2, PageID #4694-95. Tyack dismissed the offer and the 

strength of the State’s case against Petitioner: “‘Fuck them. They don’t 

have a case. We will get a better deal.’” Id., at PageID #4695. Petitioner 

also testified that there was no discussion of a counter offer. Id. As 

noted, the Court credits Tyack’s testimony over that of Petitioner in this 

regard. 

4

 Throughout these proceedings, the parties refer to the 2006 indictment as 

both a superseding indictment and a new case. 

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licensed by the Ohio Division of Securities, or that Petitioner made 

false representations or omissions in connection with the sales. See 

Petitioner’s Exhibit 9. As previously noted, Petitioner was also 

charged with one count of engaging in a pattern of corrupt activity 

and 27 counts of receipt of stolen property. 

O’Brien contacted Tyack by letter dated September 25, 2006, and 

proposed the following offer, which remained open until the close of 

business on October 3, 2006: 

Mr. Fanaro would plead guilty to two counts for each 

transaction for each victim[. T]he counts would include the 

sale of securities with no license and the false 

representation in the sale of securities for all but Alice 

Catanzaro, Lorraine Rataczak, Connison Wilson, Thomas Kerr, 

Keith and Mary Emmons and Marilyn Loucks. For the above 

named victims Mr. Fanaro would plead guilty to the sale of 

securities without a license and selling unregistered 

securities. Mr. Fanaro would make restitution to the 

victims. In terms of the sentencing, the State would 

present their case to the Judge and leave the ultimate 

decision to him. 

Petitioner’s Exhibit 7. See also Evid. Hrg. Transcrpt, Vol. 1, PageID

#4627-28. Tyack wrote Petitioner a letter on October 3, 2006, 

summarizing the terms of O’Brien’s plea offer and the likelihood of 

trial. Id., at PageID #4628-29. Tyack heard no response from 

Petitioner. 

It was Tyack’s understanding that Petitioner had no money with 

which to make restitution. Id., at PageID #4630. “So, phase one of 

the agreement was, therefore, impossible for him to perform.” Id., at 

PageID #4613-14. “I know we talked about the fact to even get that 

plea agreement, we had to come up with the money on restitution. That 

we couldn’t do. Impossible to do.” Id., at PageID #4616. Petitioner 

testified that Tyack never discussed the issue of restitution with 

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him. Evid. Hrg. Transcrpt., Vol. 2, PageID #4707. Petitioner could 

have raised funds for payment of restitution as part of a plea 

agreement. Id. However, Petitioner acknowledged that he could not 

have raised $600,000 for restitution. Id., at PageID #4713.5

 

According to Tyack, O’Brien’s offer was also unacceptable because 

Petitioner did not want to serve additional time in jail or prison and 

did not want a felony conviction on his record: “Carl felt he 

shouldn’t do any more time in jail. He was working to try to get back 

into the business, and he felt that a felony conviction would keep him 

from getting relicensed. . . .” Evid. Hrg. Transcrpt., Vol. 1, PageID

#4615. Moreover, because O’Brien’s offer required pleas of guilty to 

some of the fraud, or misrepresentation, counts, Tyack believed that 

the trial judge “probably would impose greater sentences than if it 

was something on the lower level offenses.” Id., at PageID #4558. 

. . . [T]here is no doubt in my mind, if she wants two 

counts, including the fraud count for each of the alleged 

victims, depending upon how you count. If you count a 

husband and wife as two victims or one, but depending how 

you do it, but you are talking somewhere in the 

neighbor[hood] of 40 counts, including 20 fraud counts. 

And given that circumstance, there is no way that [the 

trial judge], under those circumstances, is going to give 

him a concurrent minimum sentence on the, you know, on the 

less serious – based on the less serious offenses. 

. . . 

My suspicion is, given the publicity that had gone on, I 

don’t see why it would have come out much different, to be 

honest with you, maybe a little bit less serious. 

 

Id., at PageID #4558-59. At bottom, Tyack did not regard O’Brien’s 

offer as meaningful: “[I]n reality, that [proceeding to trial] was 

                                                            

5 Indeed, Petitioner has paid no restitution to date. Evid. Hrg. Transcrpt., 

Vol. 2, PageID #4714. 

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the only thing that could be done because their suggestion was 

impossible and probably would have resulted in him going to jail for a 

long, long time anyway.” Id., at PageID #4617. 

 Petitioner testified that he first learned of O’Brien’s proposal 

when he received Tyack’s October 3, 2006 letter to Petitioner. Evid. 

Hrg. Transcrpt., Vol. 2, PageID 4696-97. By that time, however, the 

offer had expired. Id. 

During the course of trial preparation, Tyack reviewed discovery 

materials. Evid. Hrg. Transcrpt., Vol. 1, PageID #4517-23. His trial 

strategy6

 included, inter alia, the proposition that Petitioner had not 

engaged in the sale of securities: 

[Tyack]: In this particular situation, since [Petitioner] 

was receiving no compensation, he had no ownership and so 

forth, the question was he actually doing a sale in the 

classic situation, or was he simply making an opportunity 

available to his people, to deal with – or to buy into that 

situation with the Mayes’ LLC. An argument could be made 

that he was really introducing these people, he wasn’t 

selling. The argument could be made. 

Evid. Hrg. Transcrpt., Vol. 1, PageID #4571. 

[Tyack]: I think that he provided the people an 

opportunity. He gave them the documents created by the 

LLCs. And if I remember on most occasions, actually, the 

money and so forth was sent directly to Mayes, it didn’t go 

through Carl. 

Q.[Petitioner’s Attorney]: Again, does that mean that you 

believe that there was not sale? 

A.: No, I didn’t say that. 

Q.: Did you argue that? 

                                                            

6 To be clear, Petitioner does not raise in these proceedings a claim of 

ineffective assistance of counsel at trial. The Court receives evidence 

relating to Tyack’s trial strategy and conduct during trial only as evidence 

relevant to petitioner’s claim that, because Tyack did not understand the 

elements of the charges against petitioner, he did not competently counsel 

Petitioner on whether or not to accept the State’s plea offers. In 

particular, the Court disregards any suggestion that Tyack misapplied any 

portion of the funds paid to him, except as such allegation may relate to the 

claims actually before the Court. 

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A.: I don’t believe we argued that. There was a sale, but 

the question was, was the sale directly between them and 

the LLC, rather than through Carl. 

Id., at PageID #4576-77. See also id., at PageID #4524(“[Petitioner] 

received no commission. He was provided the materials, including the 

documents that these people filled out from the prospectus, and they 

were sent to the people who were running the LLCs.”); id., at PageID

#4565 (The sale of shares in the LLCs “was a component on the edge of 

what his primary function was, which was selling the insurance 

annuities.”). 

 Tyack also wanted to convince the jury that Petitioner had done 

his “due diligence:” 

[Tyack]: . . . [I]f you are doing certain types of 

activities, if you undertake to do due diligence, if you 

turn out to be wrong, you are not necessarily liable 

civilly or, perhaps, criminally, depending on the 

circumstances. 

Id., at PageID #4565. 

 Tyack also took the position that the securities at issue were 

exempt from registration with the Ohio Division of Securities, which 

was an issue of fact for determination by the jury. Id., at PageID

#4565-66. Tyack consulted on this issue with Dwight Hurd, a securities 

lawyer,7

 and the Florida resident who had prepared the prospectus 

relating to the securities. Evid. Hrg. Transcrpt., Vol. 1, PageID

#4539, 4561-62. Tyack ultimately decided not to use their testimony 

at trial: 

                                                            

7 Petitioner’s Reply to Respondent’s Post-Hearing Brief, PageID #4823, attempts 

to refute Tyack’s testimony in this regard by referring to “Pet. Ex. 16, Hurd 

Letter.” No such exhibit was referred to at the evidentiary hearing, see 

Witness & Exhibit List, attached to Minute Entry, Doc. No 79, nor does 

Petitioner’s Motion to Admit Petitioner’s Exhibits from Evidentiary Hearing, 

Doc. No. 82, refer to such an exhibit. 

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Q. . . . [I]t would have been risky to use an expert 

because an expert could not say that these were exempt 

securities. The best that an expert could do is say maybe 

they are or maybe they aren’t; is that your testimony? 

A. Yes. 

Id., at PageID #4542-43. 

Tyack testified at the evidentiary hearing that he “doubt[ed]” 

that he consulted with Petitioner about his strategic decision not to 

retain an expert. Id. at PageID #4600. Petitioner testified that he 

could have raised additional funds with which to hire an expert. 

Evid. Hrg. Transcrpt., Vol. 2, PageID #4705. Cheryl Fanaro testified 

that her sons could have raised more money for Petitioner’s defense, 

had they been asked to do so, and she could have sold certain real 

property, which had been left to her by her father and which was worth 

$100,000. Evid. Hrg. Transcrpt., Vol. 1, PageID #4675-77. Petitioner 

knew that Tyack had consulted Hurd, but he believed that Hurd was 

acting as his attorney along with Tyack. Evid. Hrg. Transcrpt., Vol. 

2, PageID #4702-03.8

Tyack testified at the evidentiary hearing, erroneously, that the 

sale of a security that is exempt from registration does not violate 

Ohio law even if the seller is unlicensed.9

 Evid. Hrg. Transcrpt., 

                                                            

8

Instead of calling an expert on the issue of exemption, Tyack called 

Petitioner to testify on that and other topics. Evid. Hrg. Transcrpt., Vol. 

1, PageID #4564. During the course of his testimony at trial, damaging 

information was elicited, including Petitioner’s admission that he had 

misrepresented his credentials in his résumé, which had been provided to 

investors. Evid. Hrg. Transcrpt., Vol. 2, PageID #4716-17. However, there 

is no evidence that Petitioner had advised Tyack prior to trial of those 

misrepresentations, nor did he tell Tyack prior to trial that his Florida 

securities license had been suspended. Id., at PageID #4718. 9 “Q. . . . If I am selling a security that is exempt, but I do not have a 

license; am I committing a crime? 

A. Under the Ohio Revised Code, I don’t think so.” Evid. Hrg. Transcrpt., 

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Vol. 1, PageID #4547, 4578. But see O.R.C. § 1707.44(A)(1). 

Petitioner acknowledged that he had no license to sell securities at 

the time of the transactions addressed in the prosecution. He 

testified that he did not learn until after the trial that a license 

was required. Evid. Hrg. Transcrpt., Vol. 2, PageID #4691.10 “There 

was never a discussion with Mr. Tyack about me not being innocent. I 

didn’t need a license, and the securities were exempt.” Id. at PageID 

#4708. 

Tyack believed that “there was [a] slightly better than a 50-50 

chance of winning this trial.” Evid. Hrg. Transcript., Vol. 1, PageID

#4547. Cheryl Fanaro did not attend Petitioner’s trial based on 

Tyack’s assurance that Petitioner would be returning home immediately 

upon completion of trial proceedings. Id., at PageID #4678. 

Nevertheless, Petitioner understood that he could be convicted on the 

charges. Id., at PageID #4625. Tyack also told Petitioner that he 

could make a strong argument that any sentence should be “minimum 

concurrent.” Id., at PageID #4548. However, he also advised 

Petitioner that the trial judge “can do anything to you that he wants 

within the statutory range.” Id., at PageID #4552. Although 

Petitioner testified that Tyack never discussed the sentencing 

ramifications of proceeding to trial, it is clear that Petitioner knew 

that he faced a possible maximum sentence of hundreds of years: “The 

number of 300 years and a million dollar fine are just so – I probably 

                                                                                                                                                                                               

Vol. 1, PageID # 4547. 10 However, Petitioner also testified that, as early as November 2005, he had 

information “[w]hich suggested that one needed a license to sell these 

securities.” Evid. Hrg. Transcrpt., Vol. 2, PageID #4692. Petitioner 

assumed, however, that Tyack and Hurd had concluded that this information 

“wasn’t relevant to my particular situation.” Id., at PageID #4693. 

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didn’t pay that much attention to that.” Evid. Hrg. Transcrpt., Vol. 

2, PageID #4703-04. According to Petitioner, Tyack also never 

discussed the concept of judicial release, id. at PageID #4697, which 

could have rendered Petitioner eligible for consideration for early 

release.11 

The matter proceeded to trial. As noted, the jury convicted 

Petitioner on 99 of the 134 counts with which Petitioner was charged 

in the 2006 indictment. The trial judge sentenced Petitioner to 6 

months in prison on 32 counts, to be served consecutively with each 

other, 1 year on 3 other counts, to be served consecutively with each 

other and with the 32 counts, to 1 year in prison on 63 additional 

counts, to be served concurrently with all other counts, and to 5 

years in prison on the corrupt activity count, to be served 

concurrently with all other counts – for an aggregate term of 19 years 

in prison. However, the terms of O’Brien’s plea offer, which left any 

actual sentence to the trial judge, did not guarantee a shorter 

sentence. Indeed, the trial court could have sentenced Petitioner to 

“significantly more time” had Petitioner accepted O’Brien’s offer. 

Evid. Hrg. Transcrpt., Vol. 1, PageID #4629. 

Petitioner acknowledged that he did not direct Tyack to accept 

either plea offer. Evid. Hrg. Transcrpt., Vol. 2, PageID #4712-13. 

He testified that, had he been advised by Tyack of the controlling law 

                                                            

11 According to Petitioner, a sentence of 4 years would have rendered him 

eligible for release after 180 days, Evid. Hrg. Transcrpt., Vol. 2, at PageID

#4697-98, and a sentence of less than 10 years would have rendered him 

eligible for release after 5 years. Id., at PageID # 4698. See O.R.C. § 

2929.20. The statute also provides that, if the aggregate sentence is more 

than 10 years, the offender is eligible for judicial release upon the later 

of 1⁄2 the stated prison term or 5 years. O.R.C. § 2929.20(C)(5). Tyack was 

not asked at the evidentiary hearing about judicial release. 

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and of the substance of the State’s case, however, he would have 

accepted Mallett’s or O’Brien’s proposal. Id., at PageID #4696. 

There would have been “no alternative but to make a plea because there 

would have been no defense.” Id., at PageID #4697. 

B. Discussion 

The right to counsel guaranteed by the Sixth Amendment is the 

right to the effective assistance of counsel. McMann v. Richardson, 

397 U.S. 759, 771 n.14 (1970). The standard for demonstrating a claim 

of ineffective assistance of counsel is composed of two parts: 

First, the defendant must show that counsel's performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

“counsel” guaranteed the defendant by the Sixth Amendment. 

Second, the defendant must show that deficient performance 

prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is 

reliable. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of 

defense counsel’s performance must be “highly deferential.” Id. at 

689. 

With respect to the first prong of the Strickland test, 

“[b]ecause of the difficulties inherent in making the evaluation, a 

court must indulge a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance.” Id. To 

establish the second prong of the Strickland test, i.e., prejudice, a 

petitioner must demonstrate that there is a reasonable probability 

that, but for counsel's errors, the result of the proceedings would 

have been different. Id. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. 

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Because Petitioner must satisfy both prongs of Strickland to 

demonstrate ineffective assistance of counsel, should a court 

determine that a petitioner has failed to satisfy one prong, it need 

not consider the other. Id. at 697. 

A criminal defendant is entitled to the effective assistance of 

counsel during the plea negotiation process. Lafler v. Cooper, ––– 

U.S. ––––, 132 S.Ct. 1376 (2012). 

Having to stand trial, not choosing to waive it, is the 

prejudice alleged. In these circumstances a defendant must 

show that but for the ineffective advice of counsel there 

is a reasonable probability that the plea offer would have 

been presented to the court (i.e., that the defendant would 

have accepted the plea and the prosecution would not have 

withdrawn it in light of intervening circumstances), that 

the court would have accepted its terms, and that the 

conviction or sentence, or both, under the offer's terms 

would have been less severe than under the judgment and 

sentence that in fact were imposed. 

Id. at 1385. The United States Court of Appeals for the Sixth Circuit 

has described the obligations of defense counsel as it relates to 

advice during the plea negotiation stage: 

A criminal defendant has a right to expect at least that 

his attorney will review the charges with him by explaining 

the elements necessary for the government to secure a 

conviction, discuss the evidence as it bears on those 

elements, and explain the sentencing exposure the defendant 

will face as a consequence of exercising each of the 

options available 

Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (citing 

United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). 

 “[A]s a general rule, defense counsel has the duty to 

communicate formal offers from the prosecution to accept a plea on 

terms and conditions that may be favorable to the accused.” Missouri 

v. Frye, -- U.S. --, 132 S.Ct. 1399, 1408 (2012). The failure to do 

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so prior to the expiration of the terms of the offer is 

constitutionally unreasonable. Id. However, a petitioner who later 

complains of a lost plea bargain must also establish prejudice. 

To show prejudice from ineffective assistance of counsel 

where a plea offer has lapsed or been rejected because of 

counsel's deficient performance, defendants must 

demonstrate a reasonable probability they would have 

accepted the earlier plea offer had they been afforded 

effective assistance of counsel. Defendants must also 

demonstrate a reasonable probability the plea would have 

been entered without the prosecution canceling it or the 

trial court refusing to accept it . . . . 

Id. at 1409. In this regard, a petitioner must show that, “if the 

prosecution had the discretion to cancel [the plea offer], or if the 

trial court had the discretion to refuse to accept it, there is a 

reasonable probability neither the prosecution nor the trial court 

would have prevented the offer from being accepted or implemented.” 

Id. at 1410. 

A substantial disparity between a plea offer and the potential 

sentence is strong evidence of a reasonable probability that a 

properly advised defendant would have accepted the plea offer. Smith, 

348 F.3d at 552 (evidentiary hearing warranted as to whether defendant 

would have pleaded guilty where attorney failed to convey plea offer 

of five years and defendant sentenced to 156 months) (citing Magana v. 

Hofbauer, 263 F.3d 542, 552–53 (6th Cir. 2001) (difference between ten 

and twenty year sentence significant); United States v. Gordon, 156 

F.3d 376, 377–81 (2d Cir. 1998) (disparity between 10 year sentence 

in plea offer and 17 1⁄2 years the defendant received was objective 

evidence that a plea would have been accepted)). However, an 

attorney's failure to insist that his client accept a plea offer due 

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to overwhelming evidence of guilt does not constitute constitutionally 

ineffective assistance. 

The decision to plead guilty — first, last, and always — 

rests with the defendant, not his lawyer. Although the 

attorney may provide an opinion on the strength of the 

government’s case, the likelihood of a successful defense, 

and the wisdom of a chosen course of action, the ultimate 

decision of whether to go to trial must be made by the 

person who will bear the ultimate consequence of a 

conviction. 

Id. 

 In the case presently before the Court, Petitioner contends that 

his attorney performed in a constitutionally ineffective manner 

because Tyack did not properly advise Petitioner in connection with 

the plea offers. This failure, Petitioner argues, was a consequence 

of Tyack’s failure to understand the governing securities laws and 

Petitioner’s potential sentence exposure. This misapprehension was 

evidenced, in Petitioner’s view, by the counter offer to Mallett of a 

plea to a misdemeanor, which Petitioner characterizes as unreasonable 

in light of the presumption under Ohio law that Petitioner knew or 

should have known all facts relevant to the sales of securities, 

including whether the securities were exempt from the registration 

requirement. Post-Hearing Brief of Petitioner Carl Fanaro, Doc. No. 

91, pp. 10-11 (citing O.R.C. § 1707.29). Petitioner argues that Tyack 

should have known that Petitioner could not carry this burden because 

Tyack was unable to locate an expert willing to testify that the 

securities at issue were exempt. Id., at pp. 11-13. Petitioner also 

complains that Tyack failed to conduct adequate research and was 

“reckless” in advising Petitioner to proceed to trial in the absence 

of a defense expert on securities law. Id., at pp. 12-13. He also 

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argues that Tyack did not understand that Petitioner must have secured 

a license prior to selling securities, regardless of whether the 

securities were exempt from registration, id., at p. 13 (citing 

O.R.C. § 1707.02), and suggests that Tyack did not understand the 

elements of the offenses charged. Petitioner’s Reply to Respondent’s 

Post-Hearing Brief, Doc. No. 93, p. 18. 

Petitioner takes the position that his chance of winning at trial 

was “essentially zero” and that Tyack – who believed that Petitioner’s 

chance of winning at trial was “slightly better than . . . 50-50, 

Evid. Hrg. Transcrpt., Vol. 1, PageID #4547 - was therefore 

incompetent in advising Petitioner to reject the plea offers. PostHearing Brief of Petitioner Carl Fanaro, p. 13. 

Finally, Petitioner contends that Tyack failed to understand the 

“extreme sentencing exposure” that Petitioner faced, as evidenced by 

Tyack’s testimony at the evidentiary hearing that Petitioner faced a 

maximum term of 377 years’ imprisonment when in fact he actually faced 

up to 678 years in prison.12 Id. at p. 14. 

 To summarize, Petitioner contends that competent counsel would 

have advised Petitioner to accept either of the State’s proposals. 

This Court is not persuaded that Petitioner has met his burden on this 

claim. 

                                                            

12The parties disagree on the actual maximum term of imprisonment faced by 

Petitioner. Compare Post-Hearing Brief of Petitioner Carl Fanaro, p. 14 (678 

years) with Respondent’s Post Hearing Brief, Doc. No. 90, p. 2 (377 years). 

The trial court calculated the maximum sentence, at the time of sentencing, 

at 377 years. State v. Fanaro, 2008 WL 555448, *2. Regardless, it is clear 

that Petitioner knew that he faced a maximum possible sentence of hundreds of 

years in prison and it is undisputed that the imposition of the maximum 

sentence, however calculated, would effectively have been a life sentence for 

Petitioner. 

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 The record simply does not support Petitioner’s argument that his 

attorney’s telephone conversation with Mallett resulted in a formal 

plea offer. The offer was never reduced to writing and the parties 

never discussed which, if any, of the charges pending against 

Petitioner would be dismissed should Petitioner plead guilty and agree 

to a sentence of four years’ imprisonment and an order of restitution 

in some unspecified amount. 

In any event, the credible evidence establishes, in the Court’s 

view, that Tyack informed Petitioner of Mallett’s offer and that it 

was Petitioner’s decision to reject that offer because it would have 

required a felony conviction, service of a term of imprisonment and an 

order of restitution, all of which Petitioner adamantly opposed. 

 Unlike the Mallett offer, the offer extended on September 25, 

2006 by Carol O’Brien of the Office of the Ohio Attorney General, 

Petitioner’s Exhibit 7, was a formal offer as contemplated by Missouri 

v. Frye: her offer was made in writing, articulated the counts to 

which Petitioner would be required to plead guilty, and explicitly 

remained open “until the close of business Tuesday October 3, 20006.” 

Id. Tyack, assuming that Petitioner would reject the offer, informed 

Petitioner of this offer in a letter dated the same day that the offer 

expired but which was received by Petitioner approximately seven days 

later. Evid. Hrg. Transcrpt., Vol. 2, PageID #4696. There is no 

evidence that Tyack communicated O’Brien’s plea offer to Petitioner 

prior to its expiration. See Missouri v. Frye, 132 S.Ct. at 1409. 

Petitioner complains that defense counsel failed to properly 

advise him of the strength of the case against him. In this regard, 

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Petitioner focuses on the issues of exemption of the securities and 

the licensing requirement, arguing that Tyack should have known that 

he could not establish an exemption in the absence of expert testimony 

and that the licensing requirement was independent of the issue of 

exemption. As a consequence, Petitioner argues, he should have been 

advised that he had virtually no chance of success at trial. 

As an initial matter, the Court notes that the issues of 

exemption and licensing were relevant to only certain charges. 

Moreover, one of the positions taken by Tyack at trial was that 

Petitioner had not engaged in a sale of securities, a position which, 

if accepted, could have offered a defense to most if not all charges. 

Finally, although Tyack ultimately decided not to call an expert to 

testify on the issue of exemption of the securities, that decision was 

based on the fact that the ”best that an expert could do is say maybe 

they [i.e., the securities] are or maybe they aren’t” exempt from the 

registration requirement. Evid. Hrg. Transcrpt., Vol. 1, PageID # 

4542-43. 

As noted, Petitioner also complains that his trial counsel failed 

to accurately advise Petitioner of the potential sentence faced by 

Petitioner should he be convicted at trial. However, Petitioner’s own 

testimony establishes that he knew that he faced a potential sentence 

of hundreds of years. Evid. Hrg. Transcrpt., Vol. 2, PageID #4703-04. 

The Court credits Tyack’s testimony that he advised Petitioner that 

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the trial judge “can do anything to you that he wants within the 

statutory range.” Evid. Hrg. Transcrpt., Vol. 1, PageID # 4552.13 

 Despite Tyack’s failure to convey O’Brien’s offer to Petitioner 

prior to the lapse of that offer, and despite Tyack’s apparent 

misapprehension of the licensing requirement underlying certain of the 

charges pending against Petitioner, and even if Tyack did not discuss 

the concept of judicial release with Petitioner, the Court is also not 

persuaded that Petitioner has established prejudice by reason of the 

rejection of either proposal. As noted supra, in order to prevail on 

his claim in this regard, Petitioner must demonstrate a reasonable 

probability that a plea offer would have been accepted by Petitioner, 

that the prosecution would not have withdrawn it in view of 

intervening circumstances, that the trial court would have accepted 

the agreement, and that the outcome would have been less severe than 

the judgment and sentence actually imposed. See Lafler, 132 S.Ct. at 

1384. 

 Even assuming, arguendo, that Mallett’s offer was a formal offer 

within the meaning of Missouri v. Frye, the Court concludes that 

Petitioner has not established his claim as it relates to that offer. 

On January 27, 2006, i.e., 11 days after Petitioner’s counter offer 

                                                            

13 Petitioner complains that Tyack mischaracterized, in connection with 

Petitioner’s sentence, the decision of the Ohio Supreme Court in Foster v. 

State of Ohio, 109 Ohio St. 3d 1 (2006), which was issued shortly after the 

return of the 2006 indictment and which addressed sentencing by Ohio courts 

in light of Apprendi and Blakely. In light of the fact that Petitioner knew 

that he faced a maximum possible sentence of hundreds of years in prison and 

Tyack’s credible testimony that he advised Petitioner that the trial judge 

“can do anything to you that he wants within the statutory range,” Evid. Hrg. 

Transcrpt., Vol. 1, PageID # 4552, the fact that Tyack may have 

mischaracterized the ultimate impact of Foster is of no moment. Similarly, 

the fact that Tyack was ultimately unsuccessful in arguing that Petitioner’s 

sentence should be “minimum concurrent” is likewise not determinative. 

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“to enter an Alford plea to some sort of misdemeanor for the seventyfive days he spent in jail before he was transferred up to Ohio,” 

Petitioner’s Exhibit 6, a new case was filed against Petitioner. That 

new case included all of the original 52 charges filed against 

Petitioner and added new charges for a total of 134 counts. The 

Office of the Ohio Attorney General, which had assumed responsibility 

for the prosecution of the new case, refused to discuss a recommended 

sentence because “they were pushing for maximum jail time.” Evid. 

Hrg. Transcrpt., Vol. 1, PageID #4628. Tyack testified that the 

counter offer proposed by him was intended to be merely a stage in ongoing negotiations. Id., at PageID #4614. The fact that he received 

no response to that counter offer suggests that the prosecution was 

not interested in pursuing negotiations along the lines of Mallett’s 

offer. 

Petitioner argues that Mallett’s plea offer would not have been 

withdrawn and that the new indictment and the appearance of a new 

prosecutor did not constitute intervening circumstances because all 

parties were aware, at the time Mallett’s proposal was made, that a 

criminal investigation into Petitioner’s activities was on-going and 

that additional charges were likely. It is true that Tyack knew as 

early as August 2005 that the investigation was continuing. Evid. 

Hrg. Transcrpt., Vol. 1, PageID #4643. However, there is no evidence 

that Mallett’s proposal was made with the approval of the Office of 

the Ohio Attorney General. To the contrary, the fact that additional 

victims had been located and numerous additional felony charges were 

added to the prosecution undermines the likelihood that Mallett’s plea 

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offer remained viable. Similarly, there is no evidence whatsoever 

that the trial court would have agreed to a sentence of four years 

notwithstanding the quantity and seriousness of the charges against 

Petitioner. In short, Petitioner has failed to establish that he was 

prejudiced by his counsel’s performance in connection with Mallett’s 

plea offer.

 The Court also concludes that Petitioner has failed to establish 

prejudice by reason of any failure on his counsel’s part in connection 

with O’Brien’s offer. The Court specifically finds unworthy of credit 

Petitioner’s testimony that he would have accepted O’Brien’s plea 

offer but for the ineffective assistance of his counsel. Rather, the 

Court credits the testimony of Tyack regarding his discussions with 

Petitioner and his conduct during plea negotiations. More 

specifically, the Court finds credible Tyack’s testimony that 

Petitioner was adamant in his refusal to consider any plea offer that 

resulted in a felony conviction or required the payment of restitution 

or an additional period of incarceration. The Court therefore 

expressly finds that Petitioner would not have accepted O’Brien’s plea 

offer even had he been informed of the offer prior to its expiration. 

The Court accords great credit to Tyack’s testimony. 

Petitioner’s testimony was discredited by his general inability to 

recall nearly every aspect of the circumstances surrounding his 

prosecution, except those matters supportive of his claims. For 

example, Petitioner could not recall the substance of his discussions 

with Tyack during their meetings. Evid. Hrg. Transcrpt., Vol. 2, 

PageID #4708-10. In particular, Petitioner could not recall if Tyack 

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reviewed the charges, the defenses to the charges, id., at PageID

#4709, or the maximum penalties, id., at PageID #4710. He also could 

not recall the return of the 2006 indictment. Id., at PageID #4711. 

Petitioner could not recall whether he discussed O’Brien’s plea offer 

with Tyack. Id., at PageID #4712-13. Petitioner expressly denied 

being present for the selection of the jury at his criminal trial, 

id., at PageID #4715, and yet the trial transcript indicates that 

Petitioner was seated with Tyack at counsel table at that time. 

Transcript, Jury Trial, Vol. 1, Doc. No. 27-3, PageID #1501. 

Moreover, had Petitioner pled guilty pursuant to O’Brien’s plea offer, 

the trial court could have imposed the same - or an even greater - 

sentence as that actually imposed. The Court therefore declines to 

credit Petitioner’s allegation that he would have accepted O’Brien’s 

plea offer had he been advised of the offer in a timely fashion and 

had he been properly advised by his counsel of the strength of the 

case against him and his sentence exposure. 

In short, Petitioner has failed to establish the ineffective 

assistance of his trial counsel. 

III. Claim Four 

 In claim four, Petitioner asserts that he was denied the 

effective assistance of appellate counsel (who was not Petitioner’s 

trial counsel) because his attorney failed to notify the state 

appellate court of the Ohio Supreme Court’s pending consideration of 

Ohio’s statute on allied offenses of similar import, O.R.C. § 2941.25. 

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See State v. Cabrales, 118 Ohio St.3d 54 (2008).14 Appellate counsel 

argued on appeal that Petitioner’s sentences should have been merged 

because all charges upon which Petitioner was convicted were a “part 

of the same course of conduct.” Exhibit 12 to Return of Writ, PageID

#498. Petitioner asserts, however, that his appellate attorney 

performed in a constitutionally ineffective manner by failing to 

request a stay of proceedings pending decision by the Ohio Supreme 

Court in Cabrales and that, had counsel done so, Petitioner’s argument 

that the trial court improperly failed to merge his sentences would 

have prevailed and his sentence would have thereby been reduced. 

 The Strickland test for evaluating claims of ineffective 

assistance of counsel also applies to appellate counsel. Smith v. 

Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 

(1987). The failure to raise an issue on appeal can amount to 

ineffective assistance. McFarland v. Yukins, 356 F.3d 688 (6th Cir. 

2004) (citing Joshua v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); 

Lucas v. O'Dea, 179 F.3d 412, 419 (6th Cir. 1999); Mapes v. Coyle, 171 

F.3d 408, 427–29 (6th Cir. 1999)). Where a petitioner complains that 

appellate counsel improperly failed to assert a claim on appeal, a 

court must assess the strength of the claim that counsel failed to 

assert. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011) (citing 

Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). “Counsel's 

                                                            

14 Cabrales “clarified” State v. Rance, 85 Ohio St. 3d 632 (1999), and held 

that Ohio courts considering whether offenses are allied offenses of similar 

import are “not required to find an exact alignment of the elements” of the 

offenses. “Instead, if, in comparing the elements of the offenses in the 

abstract, the offenses are so similar that the commission of one offense will 

necessarily result in commission of the other, then the offenses are allied 

offenses of similar import.” Cabrales, at syllabus 1. 

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failure to raise an issue on appeal amounts to ineffective assistance 

only if a reasonable probability exists that inclusion of the issue 

would have changed the result of the appeal.” Id. (citing Wilson, 515 

F.3d at 707). 

The state appellate court rejected Petitioner’s claim on direct 

appeal that his sentences violated Ohio’s statute on allied offenses 

of similar import.15 

In comparing the statutes, R.C.1707.44(A)(1) prohibits the 

sale of securities by an unlicensed person, R.C. 

1707.44(C)(1) prohibits the sale of unregistered 

securities, R.C.1707.44(B)(4) prohibits affirmative 

misrepresentations in the sale of securities, R.C. 

1707.44(G) prohibits both affirmative misrepresentations 

and fraudulent non-disclosures in the sale of securities 

(i.e. material omissions) FN4 and, R.C 2923.32(A)(1) 

prohibits a pattern of conduct in the unlawful sale of 

securities. Pursuant to the threshold analysis under 

[State v.] Rance, [85 Ohio St. 3d 632 (1999)] we find that, 

in an abstract comparison, these security violations and 

the charge of engaging in a pattern of corrupt activity do 

not correspond to such a degree that the commission of one 

crime will necessarily result in the commission of the 

other. Therefore, we find that the charges are not allied 

offenses of similar import. 

FN4. “R.C. 1707.44(G) prohibits not only affirmative 

misrepresentation, but also fraudulent non-disclosure where 

there is a duty to disclose.” State v. Warner (1990), 55 

Ohio St.3d 31, 564 N.E.2d 18. See also, R.C. 1707.01(J) 

for the definition of “fraud.” 

State v. Fanaro, 2008 WL 555448, at *4. 

                                                            

15 Petitioner abandoned this claim on appeal to the Ohio Supreme Court. 

However, he now argues that the claim was meritorious in light of the Ohio 

Supreme Court’s April 8, 2008 decision in Cabrales, which was issued four 

months prior to the Ohio Supreme Court’s August 6, 2008 dismissal of 

Petitioner’s direct appeal. Petitioner filed his notice of appeal on April 

7, 2008, Exhibit 14 to Return of Writ, i.e., one day before the Ohio Supreme 

Court issued its decision in Cabrales, raising as his single proposition of 

law a claim that the trial judge had engaged in unconstitutional judicial 

fact-finding in sentencing Petitioner. Exhibit 15 to Return of Writ. 

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The state appellate court rejected that same claim in 

Petitioner’s Rule 26(A) motion for reconsideration: 

This matter is before the Court for consideration of 

appellant Carl Fanaro’s motion for reconsideration pursuant 

to App. R. 26(A). In the motion, appellant argues that we 

should reconsider our opinion on direct appeal because 

several of appellant’s convictions for securities 

violations are allied offenses of similar import under the 

Supreme Court’s decision in State v. Cabrales, 118 Ohio 

St.3d 54 . . . decided after this Court issued its opinion 

on direct appeal. 

. . . 

Appellant raises the same issue he raised in his motion to 

re-open concerning the application of State v. Cabrales, 

118 Ohio St.3d 54, 2007-Ohio-1625, to his case. In 

considering an application for reconsideration, the proper 

standard for our review is whether the application “calls 

to the attention of the court an obvious error in its 

decision or raises an issue for our consideration that was 

either not considered at all or was not fully considered by 

us when it should have been.” Columbus v. Hodge (1987), 37 

Ohio App.3d 68, 523 N.E. 2d 515. The issue concerning 

merger of offenses was raised and fully considered by this 

Court on direct appeal based on the state of the law at 

that time. Appellant’s claim is properly raised through 

his motion to re-open, alleging that counsel was 

ineffective for failing to alert this Court to the fact 

that Cabrales was pending before the Ohio Supreme Court. 

Exhibit 44 to Return of Writ. 

 The state appellate court also rejected Petitioner’s claim, 

raised in his Rule 26(B) proceedings, that he was denied the effective 

assistance of appellate counsel: 

. . . [A]ppellant argues that counsel was ineffective for 

failing to argue that Cabrales would have affected 

appellant’s claim that the charged offenses of securities 

violations and engaging in a pattern of corrupt activity 

were allied offenses of similar import, thereby improperly 

permitting this Court to rely on State v. Rance, 85 Ohio 

St.3d 632, 1999-Ohio-291, 710 N.E.2d 699. 

In State v. Cabrales, the Ohio Supreme Court acknowledged 

that the Rance test to determine whether separate criminal 

offenses were allied offenses of similar import had 

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produced “inconsistent, unreasonable, and, at times, absurd 

results.” Id. at paragraph 20. The Cabrales court 

rejected a “strict textual comparison” of the elements of 

separate offenses, and clarified Rance: 

“In determining whether offenses are allied offenses of 

similar import under R.C. 2941.25(A), courts are required 

to compare the elements of offenses in the abstract without 

considering the evidence in the case, but are not required 

to find an exact alignment of the elements. Instead, if, 

in comparing the elements of the offenses in the abstract, 

the offenses are so similar that the commission of one 

offense will necessarily result in commission of the other, 

then the offenses are allied offenses of similar import. 

(State v. Rance (1999), 85 Ohio St.3d 632 . . .).” 

We note that the decision in Cabrales was issued after our 

judgment on direct appeal. Appellant was sentenced in this 

case on December 18, 2006, to an aggregate term of 

incarceration of nineteen (19) years. He filed a direct 

appeal of his conviction and sentence to this Court on 

December 29, 2006. Our judgment affirming the conviction 

and sentence was filed on February 21, 2008. Appellant 

filed a notice of appeal with the Ohio Supreme Court on 

April 7, 2008. Cabrales was decided on April 9, 2008. 

Appellant’s request for jurisdiction in the Ohio Supreme 

Court was denied on August 6, 2008. 

In the application to re-open, appellant concedes that 

appellate counsel argued on direct appeal that the charged 

securities violations were allied offenses of similar 

import. Counsel further argued that several of the ninetynine counts should be merged for the purposes of 

sentencing. However, appellant contends that counsel was 

ineffective in failing to (1) put this Court on notice that 

the Ohio Supreme Court had accepted jurisdiction in 

Cabrales, (2) anticipate the Supreme Court’s ruling in 

Cabrales, and (3) move this Court to stay the direct appeal 

until the Supreme Court issued its decision in Cabrales. 

Specifically, as previously stated, appellant argues that 

counsel’s failure to address Cabrales caused this Court to 

rely improperly on State v. Rance in finding that the 

securities violations and engaging in a pattern of corrupt 

activity were not allied offenses of similar import. State 

v. Fanaro, supra at paragraph 26. We disagree. 

“To establish ineffective assistance of counsel a 

petitioner must show that his attorney failed to exercise 

the customary skill and diligence of a reasonably competent 

attorney.” State v. Woodson, Stark App. No. 2007-CA-0051, 

2008-Ohio-3519. In this case, the viability of a challenge 

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pursuant to Cabrales was not established at the time of the 

direct appeal. Courts have held that an attorney cannot be 

found to have fallen below a standard of customary skill 

and diligence in failing to present what was, at the time, 

a speculative, rather than an established, challenge and 

for failing to anticipate developments in the law. . . . 

For these reasons, we do not find that counsel’s 

performance was deficient in failing to address Cabrales on 

direct appeal. 

Additionally, the doctrine of res judicata also prevents 

this court from reopening Fanaro’s original appeal. Errors 

of law that were either previously raised or could have 

been raised through an appeal may be barred from further 

review vis-à-vis the doctrine of res judicata. See, 

generally, State v. Perry (1967), 10 Ohio St.2d 175, 226 

N.E.2d 104. The Supreme Court of Ohio has also established 

that a claim of ineffective assistance of appellate counsel 

may be barred by the doctrine of res judicata unless 

circumstances render the application of the doctrine 

unjust. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 

N.E.2d 1204. 

In this case, appellant argued on direct appeal that the 

securities violations and the charge of engaging in a 

pattern of corrupt activity were allied offenses of similar 

import. On review, this Court applied the Rance test and 

found that the securities violations and the charge of 

engaging in a pattern of corrupt activity did not 

correspond to such a degree in the abstract that the 

commission of one crime will necessarily result in the 

commission of the other. State v. Fanaro at paragraph 26. 

As noted above, Cabrales clarified Rance and did not change 

the rule of law. Our opinion in Fanaro does not 

demonstrate that we applied Rance so as to require an exact 

alignment of the elements, as the Supreme Court cautioned 

against in Cabrales. Therefore, appellant is barred from 

seeking to re-open the original appeal on this issue 

pursuant to the doctrine of res judicata. 

Exhibit 38 to Return of Writ. 

The factual findings of the state appellate court are presumed to 

be correct: 

In a proceeding instituted by an application for a writ of 

habeas corpus by a person in custody pursuant to the 

judgment of a State court, a determination of a factual 

issue made by a State court shall be presumed to be 

correct. The applicant shall have the burden of rebutting 

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the presumption of correctness by clear and convincing 

evidence. 

28 U.S.C. § 2254(e)(1). Further, this Court cannot grant habeas 

corpus relief unless the decision of the state court was contrary to 

or involved an unreasonable application of clearly established federal 

law, or was based on an unreasonable determination of the facts in 

light of the evidence presented: 

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. 

28 U.S.C. § 2254(d). The United States Supreme Court has explained: 

“[A]n unreasonable application of federal law is different 

from an incorrect application of federal law.” Williams v. 

Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 

(2000). Indeed, “a federal habeas court may not issue the 

writ simply because that court concludes in its independent 

judgment that the relevant state-court decision applied 

clearly established federal law erroneously or 

incorrectly.” Id., at 411, 120 S.Ct. 1495. Rather, that 

application must be “objectively unreasonable.” Id., at 

409, 120 S.Ct. 1495. This distinction creates “a 

substantially higher threshold” for obtaining relief than 

de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 

127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes 

a “highly deferential standard for evaluating state-court 

rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 

S.Ct. 2059, 138 L.Ed.2d 481 (1997), and “demands that 

state-court decisions be given the benefit of the doubt,” 

Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 

L.Ed.2d 279 (2002) (per curiam). 

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Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862 (2010) (footnote 

omitted)(emphasis in original). “A state court’s determination that a 

claim lacks merit precludes federal habeas relief so long as 

“‘fairminded jurists could disagree’ on the correctness of the state 

court's decision.” Harrington v. Richter, –––U.S. ––––, ––––, 131 

S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 

664 (2004)). “‘If this standard is difficult to meet’ – and it is – 

‘that is because it was meant to be.’” Burt v. Titlow, -- U.S. --, 

2013 WL 5904117, *4 (November 5, 2013)(quoting Harrington, at --, 131 

S.Ct. at 786).16 

The state appellate court held that counsel’s invocation of 

Cabrales in Petitioner’s direct appeal would not have changed the 

outcome of that appeal. His attorney, therefore, did not perform in a 

constitutionally ineffective manner by failing to alert the state 

appellate court to the pending decision in Cabrales, or by failing to 

request a stay pending that decision. Moreover, because the state 

appellate court actually considered the application of Cabrales to 

Petitioner’s sentences, Petitioner was not prejudiced by his appellate 

counsel’s failure to notify that court of the pendency of Cabrales in 

the Ohio Supreme Court. Petitioner’s claim four is therefore without 

merit. See Strickland. 

                                                            

16 Petitioner argues that the decision of the state appellate court, as it 

relates to the ineffective assistance of counsel claim addressed at the 

evidentiary hearing, is not entitled to the deference typically afforded the 

state courts under the Antiterrorism and Effective Death Penalty Act of 1996. 

Petitioner’s Reply to Respondent’s Post Hearing Brief, p. 17. The state 

appellate court, however, also addressed other claims and, as to those 

claims, the factual findings of the state appellate court are presumed to be 

correct and the decision of the state appellate court is entitled to 

deference under 28 U.S.C. § 2254(d). 

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IV. Claim Five 

 In a somewhat related argument, Petitioner contends in claim five 

that his convictions violate the Double Jeopardy Clause of the United 

States Constitution. In his traverse to the Return of Writ, 

Petitioner specifically argues that his sentences for false 

representation in the sale of securities, as charged in Counts 3, 8, 

13, 18, 23, 28, 33, 38, 43, 48, 53, 58, 63, 76, 89, 98, and 131, 

should have been merged with his sentences for securities fraud, as 

charged in Counts 4, 9, 14, 19, 24, 29, 34, 39, 44, 49, 54, 59, 64, 

77, 90, and 132.17 Petitioner’s Reply/Traverse to Respondent’s 

Answer/Return of Writ, Doc. No. 15, PageID #1254. Petitioner also 

argues in the traverse that, because all the convictions involve the 

sale of securities, his separate convictions and separate sentences on 

all those charges violate Cabrales and the Double Jeopardy Clause. 

Id., at PageID #1255-56. This Court disagrees. 

The Double Jeopardy Clause of the Fifth Amendment, made 

applicable to the states through the Fourteenth Amendment, provides 

that no person shall “be subject for the same offence to be twice put 

in jeopardy of life or limb.” U.S. Const. amend. V. The Double 

Jeopardy Clause has been interpreted to protect persons from 

successive prosecutions for the same offense after acquittal or 

conviction, as well as from multiple punishments for the same offense. 

Brown v. Ohio, 432 U.S. 161, 165-66 (1977). The traditional test for 

double jeopardy claims is the “same elements” test articulated in 

Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the 

                                                            

17 The sentences on many of these counts were to be served concurrently. 

Exhibit 8 to Return of Writ. 

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court to determine whether each charged offense “requires proof of an 

additional fact which the other does not”). The Blockburger test is 

designed to deal with the situation where closely connected conduct 

results in multiple charges under separate statutes. Under 

Blockburger, the critical question is whether the multiple charges in 

reality constitute the same offense. Thus, the Blockburger test 

focuses on whether the statutory elements of the two crimes charged 

are duplicative. If the elements of the two statutes are 

substantially the same, then to charge the defendant under both will 

violate the Double Jeopardy Clause. 

The elements of the various counts of securities violations as 

charged in the 2006 indictment are not substantially the same. As 

discussed by the state appellate court, the charge of engaging in a 

pattern of corrupt activity under O.R.C. § 2923.32, contained in Count 

134 of the 2006 indictment, requires proof that Petitioner engaged in 

a pattern of corrupt activity, see O.R.C. § 2923.32(A)(1), which is 

defined as 

two or more incidents of corrupt activity, whether or not 

there has been a prior conviction, that are related to the 

affairs of the same enterprise, are not isolated, and are 

not so closely related to each other and connected in time 

and place that they constitute a single event. 

 

O.R.C. § 2923.31(E). Ohio’s statute is patterned after the federal 

RICO statute, 18 U.S.C. § 1961 et seq., and, in applying the state 

statute, “Ohio courts look to federal case law applying RICO.” 

Clayton v. Warden, Corrections Medical Center, No. 3:11-cv-266, 2013 

WL 811450, at *11 (S.D. Ohio Mar. 5, 2013). The elements of an 

offense under this statute are different from those under O.R.C. § 

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1707.44(A)(1) (prohibiting the sale of securities without a license), 

O.R.C. § 1707.44(B)(4) (prohibiting false representations in the sale 

of securities), O.R.C. § 1707.44(C)(1) (prohibiting the sale of 

unregistered, non-exempt securities), and O.R.C. § 

1707.44(G)(prohibiting fraud in connection with the sale of 

securities), because the statute requires two or more incidents of 

corrupt activity related to the affairs of the same enterprise. 

Significantly, in federal RICO prosecutions, consecutive sentences for 

both the RICO violation and the predicate underlying offenses do not 

violate the Double Jeopardy Clause. United States v. Sutton, 700 F.2d 

1078 (6th Cir. 1983). Moreover, this Court defers to the conclusion of 

the state appellate court that the Ohio legislature intended 

cumulative punishments for the violation of these statutes. See also 

Clayton, 2013 WL 811450, at *15 (reaching same conclusion); Cody v. 

Jeffreys, No. 2:10-cv-974, 2013 WL 170268, at *7-8 (S.D. Ohio Jan. 16, 

2013) (no Double Jeopardy violation where Ohio courts have interpreted 

their own statutes to permit cumulative punishment for a single act). 

The Supreme Court has interpreted the multiple-punishments 

aspect of the Double Jeopardy Clause as protecting 

defendants from being punished more than once for a single 

act when the legislature does not intend for the 

punishments to be cumulative. See Albernaz v. United 

States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 

(1981). In other words, “[w]ith respect to cumulative 

sentences imposed in a single trial, the Double Jeopardy 

Clause does no more than prevent the sentencing court from 

prescribing greater punishment than the legislature 

intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 

S.Ct. 673, 74 L.Ed.2d 535 (1983); see White v. Howes, 586 

F.3d 1025, 1035 (6th Cir. 2009) (“The current jurisprudence 

allows for multiple punishment for the same offense 

provided the legislature has clearly indicated its intent 

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to so provide, and recognizes no exception for necessarily 

included, or overlapping offenses.”). When two different 

statutory provisions authorize punishment for the same act, 

“[t]he first step is to determine whether [the legislature] 

intended to punish cumulatively the same conduct which 

violates two statutes.” United States v. Johnson, 22 F.3d 

106, 107–08 (6th Cir. 1994); see Ohio v. Johnson, 467 U.S. 

493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (“[T]he 

question under the Double Jeopardy Clause whether 

punishments are ‘multiple’ is essentially one of 

legislative intent.”). 

. . . 

Moreover, “[w]hen assessing the intent of a state 

legislature, a federal court is bound by a state court's 

construction of that state's own statutes.” Banner v. 

Davis, 886 F.2d 777, 780 (6th Cir. 1989) (citing Hunter, 

459 U.S. at 368, 103 S.Ct. 673; O'Brien v. Skinner, 414 

U.S. 524, 531, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974)). 

“Under the [D]ouble [J]eopardy [C]lause, when evaluating 

whether a state legislature intended to prescribe 

cumulative punishments for a single criminal incident, a 

federal court is bound by a state court's determination of 

the legislature's intent.” Id. (citations omitted). 

“Thus, for purposes of double jeopardy analysis, once a 

state court has determined that the state legislature 

intended cumulative punishments, a federal habeas court 

must defer to that determination.” Id.; see Bradshaw v. 

Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 

(2005) (per curiam) (“We have repeatedly held that a state 

court's interpretation of state law, including one 

announced on direct appeal of the challenged conviction, 

binds a federal court sitting in habeas corpus.”); Jones v. 

Sussex I State Prison, 591 F.3d 707, 710 (4th Cir. 2010) 

(“[W]hen the charged offenses violate state law, the double 

jeopardy analysis hinges entirely on the state-law question 

of what quantum of punishment the state legislature 

intended. Once a state court has answered that state-law 

question, there is no separate federal constitutional 

standard requiring that certain actions be defined as 

single or as multiple crimes.” (internal citation and 

alteration omitted)). 

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Volpe v. Trim, 708 F.3d 688, 696-97 (6th Cir. 2013) (footnote 

omitted). 

 The state court held that Petitioner’s convictions and separate 

sentences on the separate securities counts and on the charge of 

engaging in a pattern of corrupt activity were not improper and did 

not violate state law. It follows, then, that Petitioner’s separate 

sentences on those charges did not violate the Double Jeopardy Clause. 

See Volpe. Particularly is this true in light of the fact that Ohio’s 

statute on allied offenses of similar import, O.R.C.. § 2941.25, is 

intended to codify the protections of the Double Jeopardy Clause. 

State v. Underwood, 124 Ohio St. 3d 365, 370 (2010). 

In short, claim five is without merit. 

V. Claim Six 

In claim six, Petitioner alleges that, in sentencing him, the 

trial court engaged in impermissible fact finding in violation of 

Blakely v. Washington, 542 U.S. 296, and the Sixth Amendment. 

Petition, PageID #33-35. The state appellate court rejected this 

claim as follows: 

Under the Ohio law, and in accordance with the Foster

decision, the trial court is vested with discretion to 

impose a prison term within an applicable statutory range. 

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 

N.E.2d 1. However, in exercising its discretion the court 

remains guided by the legislation designed to establish 

uniformity, and must “carefully consider the statutes that 

apply to every felony case [including] R.C. 2929.11, which 

specifies the purposes of sentencing, and R.C. 2929.12, 

which provides guidance in considering factors relating to 

the seriousness of the offense and recidivism of the 

offender [and] statutes that are specific to the case 

itself.” State v. Mathis, 109 Ohio St.3d at 62.FN3 The 

fact that the trial judge explained his reasons for 

imposing a particular sentence, on the record, cannot 

transform a sentence within the range provided by statute 

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into a constitutionally infirm sentence on the grounds that 

the statements constitute impermissible ‘judicial factfinding.’” State v. Goggans, Delaware App. No.2006-CA-07-

0051, 2007-Ohio-1433, at paragraph 29. 

FN3. For example, guided by the overriding purposes of 

felony sentencing the court can sentence in order to 

“protect the public from future crime by the offender” and 

“to punish the offender.” R.C. 2929.11(A). The court can 

also consider, inter alia, whether the victim suffered 

serious psychological and economic harm as a result of the 

offense, whether the offenders' occupation or profession 

obliged the offender to prevent the offense, and whether 

the offender's relationship with the victim facilitated the 

offense. R.C. 2929.12(B). 

In this case, the applicable statutory sentencing ranges 

are as follows: for a first degree felony the court may 

impose a three, four, five, six, seven, eight, nine or ten 

year sentence. For a third degree felony the court may 

impose a one, two, three, four or five year sentence; and, 

for a fifth degree felony the court may impose a six, 

seven, eight, nine, ten, eleven, or twelve month sentence. 

Furthermore, “if an offender is sentenced to multiple 

prison terms, the court is not barred from requiring those 

terms to be served consecutively.” State v. Foster, 109 

Ohio St.3d at 31. 

Prior to the imposition of sentence the trial court 

informed the parties that the maximum possible sentence 

which could be imposed by the trial court was 377 years. 

The trial court further stated, “the court has considered 

the purposes and principles of sentences set out under 

Section 2929.11 of the Ohio Revised Code, as well as the 

seriousness and recidivism factors set out under Section 

2929.12.” Transcript of sentencing proceeding at pages 33 

and 34, hereinafter T.S. at ----). The trial court found 

that the evidence established that the appellant victimized 

older, retired, financially unsophisticated people whom he 

groomed with personal charm to invest their small life 

savings in risky, long term, securities. The court further 

found that appellant's activities had a vast effect on the 

victims’ emotional and financial security. T.S. 33-38. 

The trial court then proceeded to impose a minimum six 

month sentence on each of the thirty-two third degree 

felonies and a minimum one year sentence on three, third 

degree felonies, to run consecutively to each other, and 

concurrently to all other counts, for an aggregate nineteen 

(19) year sentence. 

We note that appellant discusses an alleged disparity 

between appellant's sentence and the sentence imposed for a 

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co-conspirator. We decline to consider these arguments as 

they involve matters outside the record in this case. 

However, we find that the record establishes that the 

appellant did not receive the possible maximum consecutive 

sentence of 377 years, and that the sentence imposed was 

not only the minimum for each charged count within the 

statutory ranges, but, was also in compliance with Foster. 

Furthermore, pursuant to Goggans we do not find that the 

statements made by the trial court transform the sentence 

into a constitutionally infirm sentence on the grounds that 

the statements constitute impermissible judicial fact 

finding. 

State v. Fanaro, 2008 WL 555448, at *1-3. Again, the findings of the 

state appellate court are presumed to be correct under 28 U.S.C. § 

2254(e), and habeas corpus relief is warranted only where the state 

court’s decision contravened or involved an unreasonable application 

of federal law, as determined by the United States Supreme Court, or 

resulted in a decision that was based on an unreasonable determination 

of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). 

Such are not the circumstances here. 

 In Blakely, 542 U.S. at 296, the United States Supreme Court held 

that a judge’s fact finding cannot form the basis of a sentence 

enhancement that imposes a term greater than the maximum sentence for 

the underlying crime: 

[T]he relevant “statutory maximum” is not the maximum 

sentence a judge may impose after finding additional facts, 

but the maximum he may impose without any additional 

findings. When a judge inflicts punishment that the jury's 

verdict alone does not allow, the jury has not found all 

the facts “which the law makes essential to the 

punishment,” and the judge exceeds his proper authority. 

Id. at 303–04 (citation omitted). After Blakely, the Ohio Supreme 

Court excised the fact finding provisions of Ohio’s sentencing 

statutes, but held that “trial courts have full discretion to impose a 

prison sentence within the statutory range and are no longer required 

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to make findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences.” Foster, 109 Ohio 

St.3d at 30. Subsequently, the United States Supreme Court held that 

the Sixth Amendment does not preclude judges from making factual 

findings prior to the imposition of consecutive sentences. Oregon v. 

Ice, 555 U.S. 160, 163-64 (2009). 

 Nothing in the record supports any suggestion that the trial 

judge violated Blakely or the Sixth Amendment when it imposed 

consecutive sentences within the statutory range for the offenses upon 

which Petitioner was convicted. Petitioner misconstrues the holding 

of Apprendi v. New Jersey, 530 U.S. 466, when he argues, see Petition, 

PageID #33-34, that the Sixth Amendment forbids a sentencing judge 

from considering facts brought out during a jury trial or the effect 

of the crimes on the victims. The sentences imposed in this case did 

not exceed the statutory maximums and the trial judge was not 

constitutionally prohibited from articulating the reasons for those 

sentences. 

Claim six is without merit. 

For the foregoing reasons, it is RECOMMENDED that the petition 

for a writ of habeas corpus be DISMISSED. 

VI. Procedure for Objections 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

 

November 22, 2013 

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