IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARL FANARO, 

Petitioner, CASE NO. 2:10-CV-1002

JUDGE FROST

v. MAGISTRATE JUDGE KING

FRANCISCO PINEDA, WARDEN, 

HOCKING CORRECTIONAL FACILITY, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ and

Supplemental Memorandums in Support, Petitioner’s Traverse, Respondent’s Reply, Petitioner’s

Response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge

RECOMMENDS that an evidentiary hearing be held on Petitioner’s claim that he was denied the

effective assistance of counsel because his attorney failed to properly advise him of the advisability

of proceeding to trial and of the potential sentencing ramifications he faced. The Magistrate Judge 

FURTHER RECOMMENDS that the remainder of Petitioner’s claims of ineffective assistance

of trial counsel be DISMISSED as without merit. Because habeas corpus claims four through six

may be moot, depending on the outcome of these proceedings, the Court will address such claims

at a later date. 

 FACTS and PROCEDURAL HISTORY

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this

case as follows: 

In this case, during the course of the trial the jury heard the testimony

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of the following victim-investors or relatives of deceased victims:

Joyce Phipps, Sondra Soward, Alice Ceisil, Lola Phillips, Richard

Price, Theresa Wygant, Ralph Redduck, Donald Betts, Richard

Pickering, Connison Wilson, Lorraine Rataiczak, Richard Woodyard,

Keith Emmons, Vicki West, Cletus Sorg, and Elmer Pletcher.Each of

the victims had a similar profile and testified to a pattern of activity

regarding the appellant's sale of securities and the resulting securities

violations. Each of the victims were retired, between the ages of 60

and 90 years of age, high school graduates, with a moderate

retirement income, modest savings and little or no investment or

financial expertise.

Each victim was initially contacted by the appellant for the purposes

of estate and financial planning. Some victims sought to exclude their

assets from probate. Other victims sought to protect their assets for

disabled or ailing relatives. Richard Pickering testified that he sought

to establish safe investments to be placed in trust to assure financial

security for his adult son with Downs Syndrome. T.II.742.

During the course of the ongoing “professional” relationship the

appellant provided each victim with a business card and personal

resume. The resume included false information regarding the

appellant's training, education, ongoing certifications, and

experience.FN5 Sandra Soward testified that the appellant

represented himself as a paralegal and a financial planner. T.I.368.

Keith Emmons testified that appellant helped him obtain a power of

attorney for the purpose of investing his ninety-eight year old

mother's money and that he personally invested money. Mr. Emmons

testified that the appellant's resume was “impressive” and “very

influencing”. T.III. 924.

FN5. He admittedly, misrepresented that he held a bachelor of arts

degree from the University of Maine in 1965, that he was a paralegal

for the law firm of Hendrix and Associates, that he was a certified

senior advisor, that he was a certified financial planner with

experience at Merrill Lynch, and that he was a certified estate

counselor. Transcript of Proceedings, Volume VI at pages

1721-1727.

The victims each testified that the appellant gained their trust.

Theresa Wygant, an eighty-two year old widow, testified that she

trusted the appellant completely and “I just needed someone to help

me”. T.II. 636 and 637.

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The appellant advised the victims that he could provide them with

immediate opportunities to invest in cable companies. The appellant

further advised the victims that the investments were low risk with a

guaranteed 10 percent, tax free monthly dividend, and the investors

would have the ability to withdraw or transfer the invested funds.

Joyce Phipps testified, “He advised me that I could get my money

any time if I wanted ten cents or $10.00 or $100.00, I could withdraw

my money at any time, and I couldn't-I couldn't.” T.I. 303.

During the course of the transactions, the appellant asked the victims

to sign either blank documents or to sign documents without any

explanation of the terms. Richard Pickering testified that he signed

the documents without reading them because “I trusted him.”

T.III.741.

The appellant failed to disclose that the investments were being made

in a limited partnership. Investors were misled into believing that

they were purchasing stock in cable companies. Ralph Redduck, 90

years of age, contacted the appellant to set up a living trust for his

invalid adult son who was confined to a wheelchair. Mr. Redduck

testified that the appellant never explained that the investment was in

a limited partnership or the high level risk involved. T.II (Part 2). 659

and 665. The majority of the victims testified that they believed they

were purchasing stock in cable companies. Connison Wilson

testified, “I thought I was buying stock.” T.VIII.766. Sandra Sowards

testified, “we were under the impression we were actually buying

stock into a cable company.” T.I.384. Donald Betts testified, “He

[appellant] said everybody bought cable or used cable so there

wouldn't be no risk involved.” T.II. 703.

Satisfied with the appellant's representations regarding the investment

profiles, influenced by appellant's false credentials, and finding

appellant trustworthy, the victims individually wrote checks or wired

money to either Cable-Tex, Americable V, or Cable Unlimited, Inc.

and invested sums in amounts ranging from approximately fourteen

thousand to one hundred thousand dollars. Pursuant to the testimony

presented, in total the victims invested more than five hundred

thousand dollars between the years of 2002 and 2004.

The evidence established that prior to accepting the investments, the

appellant failed to provide the victims with private placement

memorandums. Private Placement Memorandums (“PPM”) are

generally provided to investors prior to accepting money. The PPM

sets forth the investment profile for the cable companies. The PPM

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manuals for the companies involved in these instances, explained that

the investments were being made in a “speculative”, long term (25

year), high risk limited partnership and that invested money could not

be withdrawn or returned to the investor. In all cases, the victims

received the PPM months after the investment had been made and

their investment had been squandered. Vicky West testified that she

invested twenty-thousand dollars in 2002, received the PPM in 2004,

and was “devastated”. She testified that she had invested all her

savings and had no retirement pension. T.III. 957 and 959. Each

victim testified that if the PPM had been available prior to the

investment, they would not have taken a long term, high risk,

especially at their ages and during their retirement years. Joyce

Phipps testified that had she been provided with the information prior

to making the investment, there was “no way” she would have

invested. T.I. 303.

After the initial lump sum investment, each victim received, (what

they believed to be), distribution checks. The amount of the

distribution checks were nominal compared to their investments.

Eventually they received a letter on cable company letterhead, signed

by a general partner, stating that due to computer problems they

would not be receiving monthly distributions. Eventually, they each

learned, through correspondence, that the cable companies would no

longer be making payments and that their investments were

terminated without any reimbursement. Alice Ciesil testified that she

never recovered her investments of forty thousand, twenty thousand

and fifty-five thousand dollars. T.II.481. Lola Phillips testified that

she received a letter that no further checks would be received.

T.II.555.

Attorney Robert Hendrix, an attorney who accepted referrals from

AARP and who worked with the appellant to meet clients and prepare

estate planning documents, testified that he learned that the appellant

was misrepresenting himself as a paralegal, advised appellant to stop,

and terminated the relationship. T.III.989.

Richard Distelhorst, a CPA who prepares tax returns for cable

companies testified that the victims, as limited partners, never

received “dividends” or interest on their investments. He stated that

the victims actually received partial returns of their own capital

investments, i.e. they received their own money. That was the reason

it was tax free. T. IV. 1217.

Sheldon Safko, an attorney employed by the Enforcement Section of

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the Division of Securities testified that if a person is purchasing a

limited partnership, they are purchasing a security according to Ohio

law. He further testified that in order to sell a security, you must have

a license from the Division of Securities. He testified that the

appellant was never licensed in the State of Ohio. T.I.165-166.

Furthermore, he testified that securities, such as limited partnerships,

must be registered or fall under an exemption. In this case, the

security sales were neither exempted nor registered. T.I.180-182.

State v. Fanaro, No. 2006CA00168, 2008 WL 555448, at *5-6 (Ohio App. 5th Dist. Feb. 21, 2008).

 On January 27, 2006, the Licking County Grand Jury returned a one

hundred and thirty four (134) felony count indictment against the

appellant. 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 a pattern of corrupt activity in violation of

2923.32(A)(1).

On February 24, 2006, the appellant entered a not guilty plea in

abstentia to the charges in the indictment.

On October 16, 2006, the matter proceeded to trial. Prior to the

presentation of evidence the state moved to dismiss eight (8) counts

in the indictment.FN1 On October 27, 2006, the jury found appellant

guilty of ninety-nine (99) counts in the indictment.FN2 The jury was

unable to reach a unanimous verdict on the remaining counts for

receiving stolen property. Appellant was found guilty of having

committed thirty-two (32) fifth degree felonies, sixty six (66) third

degree felonies and one (1) first degree felony. Sentencing was

deferred pending a pre-sentence investigation.

FN1. The State dismissed counts, 92, 93, 94, 95, 113, 114, 115, and

116.

FN2. The convictions included as follows: twenty seven (27) counts

of sales of unregistered securities, in violation of R.C. 1707.44(C)(1);

twenty seven (27) counts of sales of securities without a license in

violation of R.C. 1707.44(A)(1); twenty seven (27) counts of

fraudulent practices in the sale of securities, in violation of R.C.

1707.44(G); seventeen (17) counts of false representation in the sale

of securities, in violation of R.C. 1707.44(B)(4); one count of

engaging in a pattern of corrupt activity, in violation of R.C.

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2923.32(A)(1).

On November 6, 2006, the State moved to voluntarily dismiss the

remaining twenty seven (27) counts for receiving stolen property. On

November 8, 2006, the State's motion to dismiss was granted.

On December 18, 2006, appellant appeared for sentencing. The trial

court sentenced appellant to serve six months on each of the thirty

two (32) fifth degree felonies and further ordered these sentences to

run consecutively to each other for a total of sixteen (16) years. The

trial court also ordered appellant to serve one (1) year on three (3) of

the third degree felonies (counts one, six and twenty-six) to run

consecutively to each other for a total of three (3) years. The trial

court further ordered appellant to serve a five (5) 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 nineteen (19) years. Appellant was further ordered to pay

restitution and the costs of the action. The fines were waived.

 

Id. at *1. Petitioner filed a timely appeal, raising the following assignments of error: 

I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN

SENTENCING THE DEFENDANT-APPELLANT TO A TERM OF

NINETEEN (19) YEARS OF IMPRISONMENT THROUGH

ENGAGING IN JUDICIAL FACT FINDING BELOW.

II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN

SENTENCING THE DEFENDANT-APPELLANT TO A TERM OF

NINETEEN (19) YEARS OF IMPRISONMENT DUE TO THE

FAILURE OF THE TRIAL COURT TO MERGE THE SEVERAL,

CONSECUTIVE COUNTS FOR PURPOSES OF SENTENCING.

III. THE TRIAL COURT COMMITTED CONTINUING ERROR

BY ALLOWING THE INTRODUCTION OF PREJUDICIAL

EVIDENCE THROUGHOUT THE COURSE OF THE TRIAL.

Id. at *1-2. On February 21, 2008, the appellate court affirmed the judgment of the trial court. Id.

On August 6, 2008, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.

Fanaro, 119 Ohio St.3d 1409 (2008). 

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Meanwhile, 

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 Memoranda Contra the

petition on September 28, 2007.

On October 10, 2007, 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 Memoranda

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

On November 9, 2007, appellant filed a notice of appeal.

Appellant raises two Assignments of Error:

“I. THE TRIAL COURT ERRED BY RULING ON APPELLANT'S

PETITION FOR POST-CONVICTION RELIEF NINE DAYS

PRIOR TO THE DATE SCHEDULED BY THE COURT FOR

“NON-ORAL” HEARING, DEPRIVING HIM OF THE CHANCE

TO SUBMIT ADDITIONAL MATERIALS, INCLUDING BUT

NOT LIMITED TO, A MOTION FOR LEAVE TO FILE AN

AMENDED PETITION.

“II. THE TRIAL COURT ERRED BY DENYING A HEARING ON

APPELLANT'S PETITION FOR POST-CONVICTION RELIEF.

State v. Fanaro, No. 2007CA137, 2008 WL 4694595, at *1-2 (Ohio App. 5th Dist. Oct. 24, 2008). 

On October 24, 2008, the appellate court sustained Petitioner’s first assignment of error and

remanded the case to the trial court. Id. 

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

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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 now appeals, assigning as error:

“I. THE TRIAL COURT ERRED BY FAILING TO GRANT

SUMMARY JUDGMENT TO APPELLANT ON HIS CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL AND DISMISSING

THE CLAIMS.

“II. THE TRIAL COURT ERRED BY FAILING TO ORDER AN

EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE

ASSISTANCE OF COUNSEL AND DISMISSING THE CLAIMS.”

State v. Fanaro, No. 2009 CA 00066, 2009 WL 4690421, at *1-2 (Ohio App. 5th Dist. Dec. 4, 2009). 

On December 4, 2009, the appellate court affirmed the judgment of the trial court. Id. 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 filed an application requesting the appellate court to reconsider

its February 21, 2008, denial of his direct appeal in view of State v. Cabrales, 118 Ohio St.3d 54

(2008)(strict textual 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 also filed an application to reopen his appeal pursuant to Ohio Appellate Rule

26(B), asserting that he had been denied the effective assistance of appellate counsel because his

attorney failed to request a stay or to advise the state appellate of the Ohio Supreme Court’s pending

decision in Cabrales. He also asserted the denial of effective assistance of appellate counsel because

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his attorney failed to raise on appeal a claim of deficient jury verdict forms. Exhibit 36 to Return

of Writ. On May 11, 2008, the appellate court denied Petitioner’s Rule 26(B) application. Exhibit

38 to Return of Writ. On September 30, 2009, the Ohio Supreme Court dismissed Petitioner’s

subsequent appeal. Exhibit 41 to Return of Writ. 

On November 8, 2010, Petitioner filed the instant petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of

the Constitution of the Untied States as follows: 1) he was denied the effective assistance of counsel

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

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

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

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

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

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

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

effective assistance of appellate counsel because his attorney failed to provide notice to the Ohio

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

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

296 (2004). 

It is the position of the Respondent that Petitioner’s claims are procedurally defaulted or

without merit. 

PROCEDURAL DEFAULT

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In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and in order to prevent needless friction between the state and federal courts,

a state criminal defendant with federal constitutional claims is required fairly to present those claims

to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but

still has an avenue open to him by which he may present the claims, his petition is subject to

dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per

curiam ); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the

petitioner can no longer present his claims to a state court, he has also waived them for purposes of

federal habeas review unless he can demonstrate cause for the procedural default and actual

prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485

(1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

 In the Sixth Circuit, a Court must undertake a four-part analysis when the state argues that

a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must determine that there is a

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

comply with the rule.” Id. Second, the Court must determine whether the state courts actually

enforced the state procedural sanction. Id. Third, the Court must decide whether the state procedural

forfeiture is an adequate and independent state ground on which the state can rely to foreclose

review of a federal constitutional claim. Id. Finally, if the Court determines that the petitioner failed

to comply with an adequate and independent state procedural rule, then the petitioner must

demonstrate good cause for his or her failure to follow the procedural rule as well as actual prejudice

from the alleged constitutional error. Id. This “cause and prejudice” analysis also applies to failure

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to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th

Cir.1985).

In claim two, Petitioner alleges that he was denied the effective assistance of counsel because

his attorney failed to communicate with him prior to rejecting the State’s plea offer. Respondent

argues that Petitioner waived this claim by failing to present the issue to the Ohio courts. The

record, however, indicates the contrary. Plainly, Petitioner raised this same issue in post conviction

proceedings. See Exhibit 24 to Return of Writ, at 13. He has therefore preserved claim two for

federal habeas corpus review. 

In claim five, Petitioner alleges that the trial court sentenced him in violation of the Double

Jeopardy Clause. Respondent argues that Petitioner waived this claim by raising it only in the

context of an alleged violation of state law and by failing to raise the issue in the Ohio Supreme

Court. This Court is not persuaded by the first argument. Because Ohio’s statute on allied offenses

, O.R.C. § 2941.25, arises from the federal Double Jeopardy Clause, Spence v. Sheets, 675

F.Supp.2d 792, 824-25 (S.D. Ohio 2009), a petitioner may preserve a federal Double Jeopardy claim

by raising the statutory claim in the state courts. Respondent correctly notes, however, that Petitioner

failed to raise this claim on appeal to the Ohio Supreme Court. See Exhibit 15 to Return of Writ.

Instead, Petitioner raised the issue in an application for reconsideration in the state appellate court

under Ohio Appellate Rule 26(A). The state appellate court rejected Rule 26(A) application as

follows: 

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. 

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Exhibit 44 to Return of Writ. Petitioner timely appealed that decision to the Ohio Supreme Cour and

he argues that he thereby properly preserved the issue for review in these proceedings. 

Petitioner also filed an application for reopening of his appeal under Ohio’s Appellate Rule

26(B), asserting, inter alia, that he had been denied the effective assistance of appellate counsel

because his attorney failed to advise the appellate court of, or request a stay pending, the Ohio

Supreme Court’s decision in Cabrales. See Exhibit 38 to Return of Writ. The state appellate court

denied this claim on the merits. 

It appears, therefore, that Petitioner’s allegation in claim five that the trial court sentenced him

in violation of the Double Jeopardy Clause may properly be addressed in these proceedings. Even

assuming, arguendo, that Petitioner waived this claim, he nonetheless may offer, as cause for any

procedural default, the ineffective assistance of counsel because that claim was presented to the state

courta and is not itself procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 451-52

(2000)(ineffective assistance of counsel may constitute cause for a procedural default so long as such

claim has been presented to the state courts and is not, itself, procedurally defaulted). This Court,

therefore, will consider the merits of claim five in these proceedings. 

 

CLAIMS ONE, TWO and THREE 

INEFFECTIVE ASSISTANCE OF COUNSEL

Claims one, two and three are closely related and will be considered together here. In these

claims, Petitioner asserts that he was denied the effective assistance of counsel because his attorney

failed to consult with him prior to rejecting the State’s plea offer(s), improperly advised him that the

State’s evidence was weak, failed to discuss the ramification on sentencing of proceeding to trial,

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failed to advise him of the elements of the offenses charged, and failed to review discovery materials. 

According to Petitioner, had defense counsel advised him that the State’s case against him was

strong and that he faced a potentially lengthy prison term, he would have not have proceeded to trial

but would have entered a guilty plea. See Petition. Petitioner complains that the state courts refused

to hold an evidentiary hearing on this claim and contends that the state appellate court’s factual

finding of overwhelming evidence of guilt supports this claim of ineffective assistance of counsel. 

See Petitioner’s Reply, Doc. 15, at 2. Alternatively, Petitioner contends that other state courts’

factual findings are contradicted by the record. Id. at 3-4. For example, Petitioner argues that

overwhelming evidence of guilt is reflected by the prosecution’s extensive discovery files. He

contends that his counsel’s time records establish that his counsel rejected the first plea offer prior

to reviewing discovery and that he failed to even research the issue of restitution until after trial. 

Petitioner’s Reply, Doc. 15, at 4. 

The state appellate court rejected this claim, reasoning in relevant part as follows: 

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

had counsel properly instructed him he did not have a viable defense,

he would have accepted the State's first 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

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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 counsel was unprepared for trial was not

substantiated by the record. Rather, the 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 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.

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State v. Fanaro, 2009 WL 4690421, at *4-5. 

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 the presumption of correctness by clear and convincing

evidence.

 28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state court's

decision was contrary to or an unreasonable application of clearly established federal law, or based

on an unreasonable determination of the facts in light of the evidence that was 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

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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 ).

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

"[C]learly established" law under § 2254(d)(1) consists of "the

holdings, as opposed to the dicta, of this Court's" cases. Williams v.

Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An "unreasonable application" of that law involves not just an

erroneous or incorrect decision, but an objectively unreasonable one.

Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).

Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). “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)). 

The Court’s analysis must begin with a review of the applicable law: 

Defendants have a constitutional right to effective assistance of

counsel during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58-59,

106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The two-prong ineffective

assistance of counsel analysis that the Supreme Court announced in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), applies to claims that counsel's performance was

constitutionally deficient during plea negotiations. Hill, 474 U.S. at

58, 106 S.Ct. 366, 88 L.Ed.2d 203. A petitioner who claims that he

was denied effective assistance of counsel with regard to whether or

not to plead guilty must prove that (1) counsel rendered

constitutionally deficient performance, and (2) there is a reasonable

probability that but for counsel's deficient performance, the petitioner

would have pled guilty. Magana v. Hofbauer, 263 F.3d 542, 547-48

(6th Cir.2001) (citing Turner v. Tennessee, 858 F.2d 1201, 1206 (6th

Cir.1988)). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694,

104 S.Ct. 2052, 80 L.Ed.2d 674.

Humphress v. United States, 398 F.3d 855, 859 (6th Cir. 2005). An attorney's failure to convey a plea

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offer satisfies the first prong of Strickland. Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003).

Further, a substantial disparity between the plea offer and the potential sentence exposure constitutes

“strong evidence of a reasonable probability that a properly advised defendant would have accepted

a guilty plea offer, despite earlier protestations of innocence.” Smith v. United States, 348 F.3d 545,

552 (6th Cir. 2003)(citing Magana v. Hofbauer, 263 F.3d 542, 552-53 (6th Cir. 2001)(finding the

difference between a ten- and twenty-year sentence significant); United States v. Day, 969 F.2d 39

(3d Cir. 1992) (finding ineffective assistance of counsel when trial counsel mistakenly described the

penalties at trial as ten years rather than the twenty-two years, where a plea offer of five years had

been made); United States v. Gordon, 156 F.3d 376, 377-81 (2d Cir. 1998)(holding disparity between

the ten-year sentence recommended by the plea agreement and the seventeen-and-a-half years the

defendant did receive was objective evidence that a plea would have been accepted)). See also

Griffin v. United States, 33 F.3d at 739 (evidentiary hearing warranted to determine whether

defendant would have pleaded guilty where attorney failed to convey plea offer of five years and

defendant sentenced to 156 months.) An attorney's failure to insist that his client accept the

government's plea offer due to overwhelming evidence of guilt, however, does not constitute

constitutionally ineffective assistance. Smith v. United States, 348 F.3d at 552.

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. 

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 negotiations stage:

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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.

In a system dominated by sentencing guidelines, we do not see how

sentence exposure can be fully explained without completely

exploring the ranges of penalties under likely guideline scoring

scenarios, given the information available to the defendant and his

lawyer at the time.

Id., at 553 (citing United States v. Day, 969 F.2d 39, 43 (3rd Cir.1992)); see also Moss v. United

States, 323 F.3d 445, 474 (6th Cir. 2003) (Failure of defense counsel to “provide professional

guidance” regarding a defendant's sentencing exposure may constitute deficient assistance). An

attorney's obligation to advise his client applies equally to the defendant who maintains his innocence

of the charges, because other reasons may nonetheless induce him to enter a guilty plea. United States

v. Williams, No. 2:03-cv-2246, 2009 WL 348805 (W.D.Tenn. Feb.10, 2009)(quoting North Carolina

v. Alford,400 U.S. at 33). The United States Court of Appeals for the Sixth Circuit has declined to

require a convicted defendant to establish by objective evidence that he would have pleaded guilty

had his attorney properly advised him of potential sentencing ramifications. United States v.

Williams, 2009 WL 348805, at *5 (citing Griffin v. United States, 330 F.3d at 737; Dedvukivic v.

Martin, 36 Fed.Appx. 795, 798 (6th Cir.2002(unpublished). “Thus, a court may rely on a defendant's

self serving testimony that he would have accepted the plea agreement had his counsel sufficiently

advised him.” United States v. Williams, 2009 WL 348805, at *5. 

Petitioner provided to the state appellate courts a sentencing chart on the potential sentence

that he faced; a January 16, 2006, letter from defense counsel to the prosecution indicating that

Petitioner had rejected a plea offer of four years incarceration, but that he might accept an Alford plea

to a misdemeanor; Petitioner’s affidavit; the affidavit of Petitioner’s wife; a letter dated October 3,

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2006, from defense counsel to Petitioner indicating that the “offer right now is they want you to plead

guilty to 2 counts on each on of these ‘alleged victims’ and make restitution. I. . . indicated to them

that I felt that wasn’t even as good an offer as we had had . . and I was confident that you were not

interested in doing that;” a letter dated September 25, 2006, from the State to defense counsel

extending the plea offer; defense counsel’s billing statement; and the affidavit of another attorney

who opined, after reviewing discovery, that the prosecution had a good case and that, had he

represented Petitioner, he would have “heartily” explored the possibility of a negotiated guilty plea. 

See Exhibit 24 to Return of Writ, Petitioner’s Exhibits to Amended Petition for Post Conviction

Relief; see also Exhibits to Petition, Doc. 4. 

The affidavit of Petitioner’s wife indicates, in relevant part, that she and Petitioner paid

defense counsel a $20,000.00 retainer plus $5,000.00 for the services of an expert in securities law,

which defense counsel instead applied to his fees. She contends that defense counsel repeatedly

advised her prior to trial that there was “nothing to worry about.” She and Petitioner were

“flabbergasted and stunned” when he was sentenced to 19 years in prison. See id. 

Petitioner’s affidavit indicates that his attorney assured him that, although the case was large,

the State did not “have anything on” him. Petitioner’ affidavit further indicates: 

On January 13, 2006, I received a call from Mr. Tyack [defense

counsel] informing me that the prosecutor had made a plea offer of

four years, but that he had rejected it. He told me that his reasons for

doing so were that this was the State’s “first offer,” and that they did

“not have a case.” As I had retained Mr. Tyack on the highest

recommendation, I questioned this not at all. 

A short time thereafter, I received from Mr. Tyack a copy of a letter

he had sent to the prosecuting attorney. It confirmed Mr. Tyack’s

rejection of the four-year plea offer, and offered to plead to “some sort

of misdemeanor” for time served – 75 days – while I [was] awaiting

extradition from Florida. The offhand manner of his rejection gave

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me confidence, as I considered it an expression to his opponent of

what he had told me about our strong position. . . . 

Through the period between my original indictment in October, 2005,

until my trial in December 2006, I spent a total of approximately two

hours speaking with Mr. Tyack about the substance of my case. Most

of this was on October 13, 2006, when I flew in to meet him at the

Concourse Hotel at Port Columbus International Airport. . . . 

***

Not. . . in any telephone conversation, nor in the twenty minutes I

spent with Mr. Tyack loading file boxes into his vehicle on the

weekend before trial. . . did he do anything to prepare me for testifying

in my trial. 

Not long before trial, I received a letter from Mr. Tyack [indicating]

he had received and rejected another offer for a plea bargain. It would

have involved guilty pleas to two counts for each victim, restitution,

and a sentence left entirely to the judge. . . . I assumed Mr. Tyack

knew the ins and outs of my case, both fact and law, and that his

rejection of the offer was in my best interests. To put it more bluntly,

if he was confident, then so was I. 

I was never advised that a four year sentence imposed pursuant to the

first plea offer would leave me for Judicial Release after serving 180

days; nor that if I were sentenced to five years I would be eligible for

Judicial Release in four; nor that if I were sentenced to between five

and ten years I would be eligible for Judicial Release in five; nor that

if I were sentenced to a term in excess of ten years that I would not be

eligible for Judicial Release at all. The term “Judicial Release” never

came up. 

I was never advised that the down-side risk of trial was consecutive

sentencing that could add up to many, many years, nor that the total

potential exposure I had was in excess of 200 years. 

Continuing through my trial. . . . he never changed his tune that the

State did not have a case. He did not prepare me at all for my

testimony. When I was forced to admit lies on the witness stand, I

knew things looked bad, but still Mr. Tyack said not to worry. He told

me we did not need Mr. Hurd or any other expert witnesses. 

. . . . I was under the continuous impression that Mr. Tyack was

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learning the necessary securities law and the facts of the case to

properly defend me, and also to respond to, and properly advise me

about, potential plea bargain possibilities. 

***

Had I been properly informed about the strength of the State’s case,

and the possible sentences involved, I would have instructed my

attorney to accept the four-year offer if he could not improve upon it. 

I was 64 years old, and had I been aware of even the remote possibility

I could receive a sentence of 19 years, I would not have taken the

chance of going to trial. 

***

. . . [H]ad I been properly advised regarding my case, and had my

attorney not been able to improve on that offer, I would have accepted

it. 

Affidavit of Carl G. Fanaro (footnote omitted). 

The affidavit of defense counsel indicates in relevant part

In the summer of 2005, after Mr. Fanaro had been arrested in Florida

on a multi-count indictment issued by the Licking County Grand Jury,

I was contacted by an attorney by the name of Sam Leonard from

Florida who was a friend of Mr. Fanaro with regard to possibly

representing Mr. Fanaro. We met and I agreed to undertake the

representation. My initial contact with Mr. Fanaro here in Ohio was

a lengthy conference. This was a conference on August 2, 2005, while

he was incarcerated in the Licking county Jail. I undertook the

necessary steps to have the bond situation revisited and on August 31,

2005, a $10,000 cash bond was posted to obtain Mr. Fanaro’s release

from the Licking County Jail. 

The indictment in question accused Mr. Fanaro of operating

essentially in conjunction with a gentleman whose last name was

Mayes, engaging in a pattern of sale of unregistered securities, sale of

securities without a license, making false representations with regard

to securities and securities fraud. The allegations evolved from the

sale of partnership interests in limited partnerships which Mr. Mayes

had created with the assistance of counsel in Florida relating to

ownership interests in cable companies with the business entities

being created in Florida.

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The usual discovery demands, etc., were made and voluminous

documents were provided, however, many of them were of no real

relevance to the core issues in the case. For example, it was

undisputed that Mr. Fanaro had facilitated the purchase by a number

of people of the limited partnership interests, although he had no

ownership interest in the partnerships and, in fact, received no

commission from those entities controlled by Mr. Mayes for obtaining

individuals who were interested in making these investments. These

investments were usually part and parcel of a package where Mr.

Fanaro also facilitated the acquisition of annuities with appropriate

insurance companies for the same individuals and the reality is that as

the discovery materials demonstrated the limited partnerships became

relatively valueless. The discovery materials demonstrated, in fact,

there had been no payments to Mr. Fanaro from those limited

partnerships. The fact that the individuals had p[aid money into them

was not disputed. They had paid money to acquire the insurance

annuities as well. The tax returns, etc., of the limited partnership, all

of which were reviewed, demonstrated the income and loss of those

partnerships and confirmed the fact that Mr. Fanaro had received no

distribution therefrom. 

In addition, the documents relating to the acquisition of the limited

partnership interests included the prospectus, which included a letter

prepared by counsel out of Florida, indicating these were speculative

investments and that no guarantees could be made with regard to their

ultimate value. During the trial it became interesting to note that, in

fact, many individuals denied ever having seen the prospectus,

although Carl was adamant that. . . they had been provided the

documentation prior to investing and there was some corroboration of

the fact . . . because the application forms that were utilized by these

people to invest in the LLCs were actually a part of the bound

prospectus package, which meant in order to have the document to fill

it out they had to have received the prospectus, containing the warning

that these were speculative investments, they denied remembering

receiving. 

The suggestion that. . . discovery was not reviewed. . . is simply

incorrect. Discovery was reviewed and the critical issues with regard

to lack of payment to Mr. Fanaro of commissions, payment to the

LLCs, the prospectuses, and the letter from the attorney in Florida

were all reviewed thoroughly and corroborated Carl Fanaro’s version

as to what the situation was. Much of the material provided had no

relevance to the disputed issues. 

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The Licking County Prosecuting Attorney’s Office made a settlement

offer which included restitution and a jail sentence of four years. This

was conveyed to Mr. Fanaro and he summarily rejected it indicating

that he did not feel he belonged in jail. And in addition he was

financially in the position where he had no possible way of making

restitution. (The reality is that he and his wife had filed bankruptcy in

2004. . . and listed most of the alleged victims of this indictment as

creditors and received a Chapter 7 discharge. Mr. Fanaro and his wife

made it clear that they did not want this information discussed or

revealed with the Prosecuting Attorney or with the Attorney General’s

Office’s representative. . . . )

The maximum penalty levels on both the initial indictment and the

superseding indictment were discussed with Mr. Fanaro. However, I

also advised him that, based on the status of the law at that time. . .

given his lack of prior felony record. . . there was a strong argument

that could be made that consecutive or maximum sentences would be

inappropriate. 

At Mr. Fanaro’s request I discussed the situation with regard to the

securities registration issue and sale of unregistered securities with

attorney Dwight Hurd who had represented both Mr. Mayes and Mr.

Fanaro in previous matters. Mr. Hurd felt that. . . an argument could

be made that these were exempt given the situation in terms of being

LLCs involving cable companies out of Florida, and given the letters

in the prospectus demonstrating that they were, in fact, a speculative

type of investment. However, given the fact that he had represented

Mr. Fanaro on matters before the Insurance Department of the State

of Ohio and had represented both Mr. Mayes and Mr. Fanaro on

matters relating to other business transaction and entities he was

reluctant to agree to testify and confirmed that. . . proper cross

examination could create issues which might not be in Mr. Fanaro’s

favor. 

Shortly before trial the Attorney General’s Office tendered another

offer of a plea which involved two counts as to each alleged victim

leaving the sentencing to the judge but with a provision that restitution

be made and it was clear that the restitution was to be undertaken prior

to or concomitant with any plea. Given Mr. Fanaro’s financial

condition and the bankruptcy. . . that offer was rejected as well

because it was absolutely impossible for Mr. Fanaro to provide that

quantity of funds being asked for and, more significantly, probably

would have raised an additional issue as to whether or not it would

expose Mr. Fanaro to renewed civil liability given the status of the

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Chapter 7 bankruptcy where the alleged victims had not challenged

the dischargeability as to the debt. 

During the same period of time in 2006, Mr. Fanaro was actually sued

in Delaware County by one of the alleged victims in this case. We

were representing him on that case as well and in that case we pled in

the Answer the affirmative defense of the bankruptcy. Thus, while

that information was a public record in that civil case, I had no

information to suggest that the Attorney General’s Office was aware

of that civil case, I had no information to suggest that the Attorney

General’s Office was aware of that civil case or aware of the pleading. 

The suggestion that. . . no time was spent preparing Mr. Fanaro to

testify is simply untrue. Consistent with my usual practice, I reviewed

in general terms what the areas that would be covered prior to trial and

instructed Mr. Fanaro to listen carefully what was going on at the trial

and we would, in fact, go over the materials and what he had heard

prior to his testimony so that we could meet the allegations head on. 

Mr. Fanaro had received the appropriate documentation, discovery and

exhibits, etc., in Florida, and responded to them in summary fashion. 

Attached hereto as an exhibit is the outline of Mr. Fanaro’s proposed

testimony and the areas that were to be covered. In addition, Mr.

Fanaro had faxed to me on the weekend before his testimony his

summaries as to each victim, what he remembered about them. . . over

and above the documentation we had provided. The material was then

reviewed with him prior to him getting on the witness stand and any

suggestion that he “had to lie” is absolutely untrue. He was

encouraged, as always, that he needed to tell the truth but if he did not

understand a question asked on cross examination it was his

responsibility to indicate that he did not understand it and ask for

clarification. 

The allegation that only two hours were spent discussing the substance

of the case is simply untrue. 

There were many hours where we reviewed matters with Mr. Fanaro

but, again it must be recalled that certain aspects of the facts of the

case were not in dispute; that the entities had been sold; that he had

sold them; that he collected no money directly from any of the LLCs 

and that it was a part of an estate planning procedure that he undertook

to also sell these people insurance annuities which actually had

increased substantially in value so that a number of these individuals’

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actual total value of the investments that Mr. Fanaro had placed them

in exceeded that which, even with the loss on the cable company, of

that which they had invested. 

Because of Mr. Fanaro’s limited financial situation we had adjusted

what had initially been undertaken as a fee arrangement. We agreed

that there would be a flat fee of $20,000 up to trial and $5,000 would

be maintained in the Trust account for any extraordinary expenses and

that money could be applied as well to the fee, depending on the

amount of trial time and that after trial we would revisit the issue of

additional compensation. As a result of the flat fee arrangement it was

not necessary for me to keep precise time records as to the pre-trial

work done on the case and, candidly, the amount of time devoted was

substantially more than what was written down simply because of the

flat fee arrangement. Comprehensive time record was maintained

during the trial procedure and as the attached ledger demonstrates in

excess of $41,000 in time was spent on this case. Mr. Fanaro’s

$20,000 was applied to the fee and the remainder of the amount from

the $5,000 being held in the Trust account was applied to the fee. 

Affidavit of Thomas M. Tyack. 

 

Petitioner has also attached, in support of this claim, the affidavit of Edward Mayrides, a

paralegal who worked for Dennis Pusateri (Petitioner’s Exhibit F); an index to items provided in

discovery; a letter from Attorney Dwight Hurd indicating that he had agreed to provide advice to

Attorney Tyack regarding securities issues in exchange for a retainer of $5000.00, but that defense

counsel did not pursue that course of action, Petitioner’s Exhibit Z; and newspaper articles regarding

the case. See Petitioner’s Exhibits, Doc. 4. Because Petitioner did not, apparently, submit these

documents to the state courts, see Exhibit 24 to Return of Writ, nor can he establish that he acted

diligently in attempting to do so, this Court cannot not now consider these documents in support of

his claim in these proceedings. See 28 U.S.C. 2254(e)(2); Cullen v. Pinholster, – U.S. –, 131 S.Ct.

1388, 1398 (2011); Holland v. Jackson, 542 U.S. 649, 652 (2004); Sheppard v. Bagley, 657 F.3d

338, 2011 WL 4031097, at *3 (6th Cir. Sept. 13, 2011)(refusing to consider evidence not considered

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by state courts in view of Pinholster). 

As to Petitioner’s assertion that his attorney failed to consult with him prior to rejecting the

prosecution’s plea offer and failed to review discovery or to conduct adequate investigation prior to

trial, this Court is not persuaded that the record demonstrates a basis for relief. As noted by the state

appellate court, the record demonstrates that defense counsel notified Petitioner on at least two

occasions in writing of the plea offer extended by the prosecution. Nothing in the record even

suggests that Petitioner was prevented from accepting the plea offer or was unable to direct his

attorney to do so on his behalf, regardless of his having earlier rejected the offer. Petitioner’s

allegation that defense counsel failed to review discovery or was unprepared for trial likewise is not

supported by the record. Petitioner has referred to nothing in the trial transcript indicating that his

attorney performed in a constitutionally unreasonable manner, either at trial or at sentencing . The

state appellate court explicitly concluded that etitioner’s allegations in this regard were not

substantiated by the trial transcript, and Petitioner has failed to rebut the presumption of correctness

attached to that factual finding. Additionally, and despite Petitioner’s argument to the contrary, this

Court is unable to conclude that the state appellate court unreasonably concluded that defense

counsel’s billing statement failed to support Petitioner’s claim, since defense counsel’s affidavit

indicates that he did not keep precise records of time prior to trial in view of the flat fee arrangement

agreed to by Petitioner and his counsel. Thus, Petitioner’s argument that his attorney failed to

prepare for trial or to review discovery in a timely manner is mere conjecture. Petitioner has also 

failed to establish the ineffective assistance of counsel under Strickland based on his attorney’s

failure to consult with him prior to rejecting the State’s guilty plea offer. The Magistrate Judge

RECOMMENDS, therefore, that these claims of ineffective assistance of counsel be DISMISSED. 

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That said, the crux of Petitioner’s claim is that his attorney failed to advise him of the strength

of the government’s case against him and of the potential sentence that he faced should he be

convicted at trial. In this regard, Petitioner alleges that his attorney failed to explain how the State

would prove the elements of the offenses charged and failed to review the evidence against him prior

to trial. Assuming Petitioner’s allegations to be true, he has set forth a substantive ground for relief. 

See Hill v. Lockhart, 474 U.S. at 58-59. Defense counsel, on the other hand, denies these allegations

and alleges that Petitioner proceeded to trial because he refused to agree to jail time and could not

afford to pay restitution. 

The state court rejected this claim without conducting an evidentiary hearing, reasoning that

the only evidence in support of his claim was his own self-serving affidavit. Proper resolution of

the issue, however, necessarily requires a credibility determination between these competing factual

assertions. Because the state courts did not engage in such a credibility determination, this Court

concludes that an evidentiary hearing must be held by this Court on Petitioner’s claim that he was

denied the effective assistance of counsel because his attorney failed to advise him of the advisability

of proceeding to trial and of the potential sentencing ramifications that he faced. 

As the remainder of Petitioner’s claims may become moot, depending on the outcome of these

proceedings, the Court will defer consideration of those claims at this juncture.

WHEREUPON, the Magistrate Judge RECOMMENDS 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 of the advisability of proceeding to trial and of the potential sentencing ramifications

that he faced. The Magistrate Judge RECOMMENDS that the remainder of Petitioner’s claims of

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ineffective assistance of trial counsel be DISMISSED as without merit. Because resolution of habeas

corpus claims four through six may turn on the outcome of evidentiary hearing, the Court will defer

consideration of those claims at this juncture. 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting authority

for the objection(s). A judge of this Court shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is made. Upon

proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver 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); United States

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

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability 

should issue.

 s Norah McCann King 

Norah McCann King

United States Magistrate Judge

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February 3, 2012

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