Fanaro v. Warden Hocking Correctional Facility

Filing 28

REPORT AND RECOMMENDATION that an evidentiary hearing be held on Petitioner's claim that he was denied effective assistance of counsel because his attorney failed to advise him of the advisability of proceeding to trial & of the potential senten cing ramifications. Further RECOMMENDING that the remainder of Petitioner's claims of ineffective assistance be DISMISSED & DEFERS consideration of claims 4 through 6 pending the outcome of an evidentiary hearing. Objections to R&R due by 2/21/2012. Signed by Magistrate Judge Norah McCann King on 2/3/2012. (kjm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARL FANARO,
Petitioner,
v.

CASE NO. 2:10-CV-1002
JUDGE FROST
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

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.

2

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
3

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
4

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.
5

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).

6

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
7

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
8

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

9

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

10

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.
11

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,

12

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
13

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.
14

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
15

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

16

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,
18

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.

22

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

25

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.

26

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

27

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

29