IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CARL FANARO, 

Respondent, 

Case No. 2:10-CV-1002

Judge Frost

Magistrate Judge King

WARDEN, HOCKING 

CORRECTIONAL FACILITY, 

Respondent.

OPINION AND ORDER

Petitioner was convicted following a jury trial in Licking County

on 99 felony counts in connection with the sales of securities and was

sentenced to a total aggregate term 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 have been subjected to an order of restitution and

could have been sentenced to a much short term of imprisonment. See

id. The Magistrate Judge recommended that an evidentiary hearing be

held on Petitioner’s claim that he was denied the 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, that consideration of habeas corpus claims four

through six be deferred pending the evidentiary hearing and that the

remainder of Petitioner’s claims of ineffective assistance of trial

counsel be dismissed as without merit. Report and Recommendation,

Doc. No. 28. On May 21, 2012, this Court adopted and affirmed that

recommendation over the objections of both Petitioner and Respondent. 

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Opinion and Order, Doc. No. 40. This matter is now before the Court

on Respondent’s Motion for Reconsideration of that Opinion and Order

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, Doc.

No. 46. Petitioner has filed a Response in Opposition, Doc. No. 51,

and Respondent has filed a Reply, Doc. No. 57. For the reasons that

follow, Respondent’s Motion for Reconsideration, Doc. No. 46, is

DENIED.

Seeking relief from this Court’s direction that an evidentiary

hearing be held, Respondent invokes Rule 60(b)(1), (6) of the Federal

Rules of Civil Procedure.1 Respondent specifically argues that, in

ordering an evidentiary hearing on Petitioner’s claim of ineffective

assistance of counsel, the Court misconstrued the plea offer(s)

extended to Petitioner, erroneously concluded that the state courts

improperly made a credibility determination without holding an

evidentiary hearing, erroneously concluded that the state courts

unreasonably applied federal law because the United States Supreme

Court has never held that an evidentiary hearing is required under

facts such as those presented in this case, erroneously applied 

Lafler v. Cooper, – U.S. –, 132 S.Ct.1376 (2012), and Frye v.

Missouri, – U.S. –, 132 S.Ct. 1399 (2012), erroneously invited new

evidence at the evidentiary hearing and erroneously failed to specify

the particular new evidence – particularly in regard to expert

testimony – that will be entertained at the evidentiary hearing.

As an initial matter, the Court notes that Rule 60(b) does not

1

Those provisions of Rule 60 authorize relief from a final judgment

based on “(1) mistake, inadvertence, surprise, or excusable neglect;” or (6)

any other reason that justifies relief.”

2

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offer the relief sought by Respondent. “[B]y its terms, Rule 60(b)

applies only to final judgments.” Mallory v. Eyrich, 922 F.2d 1273,

1277 (6th Cir. 1991). However, courts “‘have the inherent power to

reconsider interlocutory orders and reopen any part of a case before

entry of a final judgment.’” In re Saffady, 524 F.3d 799, 803 (6th

Cir. 2008), quoting Mallory, at 1282. See also Marconi Wireless

Telegraph Co. v. United States, 320 U.S. 1 (1943)(“District courts

have inherent power to reconsider interlocutory orders and reopen any

part of a case before entry of a final judgment”). 

A court may properly reconsider its interlocutory order “‘whe[re]

there is (1) an intervening change of controlling law; (2) new

evidence available; or (3) a need to correct a clear error or prevent

manifest injustice.’” Louisville/Jefferson County Metro Government f.

Hotels.Com, L.P., 590 F.3d 381, 389 (6th Cir. 2009), quoting

Rodriguez v. Tenn. Laborers health & Welfare, 89 Fed. Appx. 949, 959

(6th Cir. 2004). “Generally, a manifest injustice or a clear error of

law requires unique circumstances[.]” McWhorter v. ELSEA, No. 2:00-cv473, 2006 WL 3483964, at *2 (S.D. Ohio Nov. 30, 2006)(refusing to

grant motion for reconsideration that merely attempts to relitigate

issues already presented). 

Respondent does not refer to an intervening change of law or new

evidence and the Court is not persuaded that clear error or manifest

injustice warrants the relief sought by Respondent. 

Referring to Parker v. Matthews, 567 U.S. – ,132 S.Ct. 2148

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(2012),2 Respondent argues that this Court failed to accord to the

state courts’ decisions the deference required by 28 U.S.C. § 2254(d),

(e) and impermissibly relied on lower court precedent – rather than on 

Supreme Court authority – in evaluating the reasonableness of the Ohio

courts’ decisions. Respondent complains that the Court impermissibly

relied on Lafler v. Cooper, – U.S. –, 132 S.Ct. 1376 (2012), and

Missouri v. Frye, – U.S. –, 132 S.Ct. 1399 (2012), in violation of

Greene v. Fisher, – U.S. –, 132 S.Ct. 38 (2011),3 contends that Hill v.

Lockhart, 474 U.S. 52 (1985), is inapplicable to this case and that

Lafler does not compel an evidentiary hearing. Addressing this

Court’s conclusion that a hearing should have been held by the state

courts to assess Petitioner’s credibility, Respondent now argues that

the trial judge who presided over Petitioner’s jury trial had the

opportunity to assess Petitioner’s credibility and that there was

therefore no need to conduct another hearing to assess the credibility

of Petitioner’s allegation that his attorney failed to properly advise

him regarding the decision to proceed to trial and sentencing

ramifications. Respondent also argues that the United States Supreme

Court has never held that an evidentiary hearing is required under

2

 In Parker v. Matthews, the United States Supreme Court reversed the

grant of habeas corpus relief by the United States Court of Appeals for the

Sixth Circuit on a claim of prosecutorial misconduct in contravention of the

standard articulated in Darden v. Wainwright, 477 U.S. 168 (1986). According

to the Supreme Court, because the Darden standard is very general, courts have

more leeway in reaching outcomes on a case-by-case basis. Id. at 2155. The

Court also held that the Sixth Circuit erred by relying on its own precedent

rather than on that of the Supreme Court in assessing the reasonableness of

the Kentucky courts’ decisions. Id.

3

 In Greene v. Fisher, 132 S.Ct. at 38, the United States Supreme Court

held that federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the

record that was before the state court adjudicating the claim, and must take

into account only the decisions of the United States Supreme Court at the time

the state court rendered its decision. Id. at 44 (citations omitted). 

4

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facts such as those presented in this case. Furthermore, Respondent

argues that, in concluding that an evidentiary hearing is warranted,

this Court improperly referred to or relied on cases involving 28

U.S.C. § 2255, under which the standard for granting an evidentiary

hearing is less stringent than that applicable to cases under 28

U.S.C. § 2254. Respondent again argues that, in considering

Petitioner’s claim of ineffective assistance of counsel, this Court

should consider no evidence beyond the trial record and, in

particular, should not entertain evidence from an attorney expert. 

Finally, Respondent complains that, in concluding that an evidentiary

hearing is warranted, this Court misconstrued or mischaracterized the

plea offers extended by the State. 

Respondent generally raises arguments have already been addressed

or could have been raised previously; those arguments will therefore

not again be considered here. 

Neither Greene v. Fisher, 132 S.Ct. at 38, nor Parker v.

Matthews, 132 S.Ct. at 2148, set forth any intervening change in law

that alters either the arguments of the parties or the analysis of the

relevant issues by this Court. Moreover, this Court need not rely on

the recent decisions of the Supreme Court in Lafler and Frye in order

to reach the conclusion that an evidentiary hearing is warranted. As

discussed in the Report and Recommendation, an evidentiary hearing is

warranted by consideration of Hill v. Lockhart, 474 U.S. at 52, and

Strickland v. Washington, 466 U.S. 668 (1984). As this and other

courts have concluded, the language of the Supreme Court in both Frye

and Lafler “repeatedly and clearly” indicates that the Supreme Court

in those cases was applying an established rule that the state courts

5

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had misapplied. See Hare v. United States, – F.3d –, 2012 WL 3156329,

at *1 (7th Cir. Aug. 6, 2012)(“Both Hill and Frye apply Strickland’s

inquiry into whether ‘the result of the proceeding would have been

different’ to a reasonable probability.”)(quoting Frye, 132 S.Ct. at

1410); In re Perez, 682 F.3d 930 (11th Cir. 2012)(“[T]he language in

Lafler and Frye confirm that the cases are merely an application of

the Sixth Amendment right to counsel, as defined in Strickland, to a

specific factual context”)). “[T]he Supreme Court has long recognized

that Strickland’s two-part test applies to ‘ineffective assistance of

counsel claims arising out of the plea process.’” Id. at 932 (quoting

Hill v. Lockhart, 474 U.S. at 57).4 Finally and as reflected in the

Report and Recommendation, this Court is cognizant that first plea

offer extended by the State contemplated a sentence of four years

incarceration and an order of restitution and that, subsequently, the

4

 In Hill v. Lockhart, 474 U.S. at 52, the Supreme Court considered the

issue of ineffective assistance of counsel in connection with a criminal

defendant’s decision to plead guilty rather than proceed to trial:

[T]he two-part Strickland v. Washington test applies to challenges

to guilty pleas based on ineffective assistance of counsel. In the

context of guilty pleas, the first half of the Strickland v.

Washington test is nothing more than a restatement of the standard

of attorney competence already set forth in Tollett v. Henderson,

supra, and McMann v. Richardson, supra. The second, or

“prejudice,” requirement, on the other hand, focuses on whether

counsel's constitutionally ineffective performance affected the

outcome of the plea process. In other words, in order to satisfy

the “prejudice” requirement, the defendant must show that there is

a reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to trial. 

Id. at 58-59 (footnote omitted). The Supreme Court found it unnecessary to

determine whether counsel’s erroneous advice regarding parole eligibility in

Hill constituted constitutionally ineffective assistance because the

petitioner in that case failed to allege that he would not have pleaded guilty

but would have insisted on proceeding to trial had he been properly advised

regarding parole. Such are not the circumstances here. Petitioner

specifically alleges that, had he been properly advised by his attorney he

would not have proceeded to trial, but would have entered a guilty plea. 

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State offered an agreement by which Petitioner would plead guilty to

two counts for each victim in exchange for an order of restitution and

a sentence to be determined by the trial judge. These facts do

nothing to alter this Court’s conclusions that, assuming the truth of

his allegations, Petitioner has set forth a potentially meritorious

claim for relief under Hill v. Lockhart, 474 U.S. at 52, and that an

evidentiary hearing is required to resolve the factual disputes

reflected in the record. 5

WHEREUPON Respondent’s Motion for Relief from Judgment, Doc. No.

46, is DENIED. 

Respondent’s unopposed Motion to Continue the Deadline for

Exchange of Witnesses and Documents, Doc. 58, is GRANTED. The parties

shall exchange witness lists and identify documents to be used at the

evidentiary hearing within fourteen (14) days of the date of this

Opinion and Order. 

 /s/ Gregory L. Frost_

GREGORY L. FROST

United States District Judge

5

As noted supra, the Court will not address Respondent’s remaining

arguments, such as the challenge to the Court’s consideration of new evidence

at the evidentiary hearing, which either were or could have been raised in

connection with the objections to the Report and Recommendation. 

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