Fanaro v. Warden Hocking Correctional Facility

Filing 59

ORDER denying 46 Respondent's Motion for Relief from Judgment; granting 58 Respondent's Motion to Continue the Deadline for Exchange of Witnesses and Documents. Signed by Judge Gregory L Frost on 8/23/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARL FANARO,
Respondent,
Case No. 2:10-CV-1002
Judge Frost
Magistrate Judge King
WARDEN, HOCKING
CORRECTIONAL FACILITY,
Respondent.
OPINION AND ORDER
Petitioner was convicted following a jury trial in Licking County
on 99 felony counts in connection with the sales of securities and was
sentenced to a total aggregate term of 19 years in prison. State v.
Fanaro, No. 2006CA00168, 2008 WL 555448, at *1 (Ohio App. 5th Dist.
Feb. 21, 2008). Had Petitioner accepted the State’s plea offer, he
would have pled guilty to two counts for each victim, in exchange for
which he would have been subjected to an order of restitution and
could have been sentenced to a much short term of imprisonment. See
id.

The Magistrate Judge recommended that an evidentiary hearing be

held on Petitioner’s claim that he was denied the effective assistance
of counsel because his attorney failed to advise him on the decision
to proceed to trial and the potential sentencing ramifications that he
faced following trial, that consideration of habeas corpus claims four
through six be deferred pending the evidentiary hearing and that the
remainder of Petitioner’s claims of ineffective assistance of trial
counsel be dismissed as without merit.
Doc. No. 28.

Report and Recommendation,

On May 21, 2012, this Court adopted and affirmed that

recommendation over the objections of both Petitioner and Respondent.

Opinion and Order, Doc. No. 40.

This matter is now before the Court

on Respondent’s Motion for Reconsideration of that Opinion and Order
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,
No. 46.
and

Petitioner has filed a Response in Opposition,

Respondent has filed a Reply,

Doc. No. 57.

Doc.

Doc. No. 51,

For the reasons that

follow, Respondent’s Motion for Reconsideration, Doc. No. 46, is
DENIED.
Seeking relief from this Court’s direction that an evidentiary
hearing be held, Respondent invokes Rule 60(b)(1), (6) of the Federal
Rules of Civil Procedure.1

Respondent specifically argues that, in

ordering an evidentiary hearing on Petitioner’s claim of ineffective
assistance of counsel, the Court misconstrued the plea offer(s)
extended to Petitioner, erroneously concluded that the state courts
improperly made a credibility determination without holding an
evidentiary hearing, erroneously concluded that the state courts
unreasonably applied federal law because the United States Supreme
Court has never held that an evidentiary hearing is required under
facts such as those presented in this case, erroneously applied
Lafler v. Cooper, – U.S. –, 132 S.Ct.1376 (2012), and Frye v.
Missouri, – U.S. –, 132 S.Ct. 1399 (2012), erroneously invited new
evidence at the evidentiary hearing and erroneously failed to specify
the particular new evidence – particularly in regard to expert
testimony – that will be entertained at the evidentiary hearing.
As an initial matter, the Court notes that Rule 60(b) does not

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Those provisions of Rule 60 authorize relief from a final judgment
based on “(1) mistake, inadvertence, surprise, or excusable neglect;” or (6)
any other reason that justifies relief.”

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offer the relief sought by Respondent.
applies only to final judgments.”
1277 (6th Cir. 1991).

“[B]y its terms, Rule 60(b)

Mallory v. Eyrich, 922 F.2d 1273,

However, courts “‘have the inherent power to

reconsider interlocutory orders and reopen any part of a case before
entry of a final judgment.’” In re Saffady, 524 F.3d 799, 803 (6th
Cir. 2008), quoting Mallory, at 1282.

See also

Marconi Wireless

Telegraph Co. v. United States, 320 U.S. 1 (1943)(“District courts
have inherent power to reconsider interlocutory orders and reopen any
part of a case before entry of a final judgment”).
A court may properly reconsider its interlocutory order “‘whe[re]
there is (1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent
manifest injustice.’” Louisville/Jefferson County Metro Government f.
Hotels.Com, L.P.,

590 F.3d 381, 389 (6th Cir. 2009), quoting

Rodriguez v. Tenn. Laborers health & Welfare, 89 Fed. Appx. 949, 959
(6th Cir. 2004).

“Generally, a manifest injustice or a clear error of

law requires unique circumstances[.]” McWhorter v. ELSEA, No. 2:00-cv473, 2006 WL 3483964, at *2 (S.D. Ohio Nov. 30, 2006)(refusing to
grant motion for reconsideration that merely attempts to relitigate
issues already presented).
Respondent does not refer to an intervening change of law or new
evidence and the Court is not persuaded that clear error or manifest
injustice warrants the relief sought by Respondent.
Referring to Parker v. Matthews, 567 U.S. – ,132 S.Ct. 2148

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(2012),2 Respondent argues that this Court failed to accord to the
state courts’ decisions the deference required by 28 U.S.C. § 2254(d),
(e) and impermissibly relied on lower court precedent – rather than on
Supreme Court authority – in evaluating the reasonableness of the Ohio
courts’ decisions.

Respondent complains that the Court impermissibly

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

and

Missouri v. Frye, – U.S. –, 132 S.Ct. 1399 (2012), in violation of
Greene v. Fisher, – U.S. –, 132 S.Ct. 38 (2011),3 contends that Hill v.
Lockhart, 474 U.S. 52 (1985), is inapplicable to this case and that
Lafler does not compel an evidentiary hearing.

Addressing this

Court’s conclusion that a hearing should have been held by the state
courts to assess Petitioner’s credibility, Respondent now argues that
the trial judge who presided over Petitioner’s jury trial had the
opportunity to assess Petitioner’s credibility and that there was
therefore no need to conduct another hearing to assess the credibility
of Petitioner’s allegation that his attorney failed to properly advise
him regarding the decision to proceed to trial and sentencing
ramifications.

Respondent also argues that the United States Supreme

Court has never held that an evidentiary hearing is required under
2

In Parker v. Matthews, the United States Supreme Court reversed the
grant of habeas corpus relief by the United States Court of Appeals for the
Sixth Circuit on a claim of prosecutorial misconduct in contravention of the
standard articulated in Darden v. Wainwright, 477 U.S. 168 (1986). According
to the Supreme Court, because the Darden standard is very general, courts have
more leeway in reaching outcomes on a case-by-case basis. Id. at 2155. The
Court also held that the Sixth Circuit erred by relying on its own precedent
rather than on that of the Supreme Court in assessing the reasonableness of
the Kentucky courts’ decisions. Id.
3

In Greene v. Fisher, 132 S.Ct. at 38, the United States Supreme Court
held that federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the
record that was before the state court adjudicating the claim, and must take
into account only the decisions of the United States Supreme Court at the time
the state court rendered its decision. Id. at 44 (citations omitted).

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facts such as those presented in this case.

Furthermore, Respondent

argues that, in concluding that an evidentiary hearing is warranted,
this Court improperly referred to or relied on cases involving 28
U.S.C. § 2255, under which the standard for granting an evidentiary
hearing is less stringent than that applicable to cases under 28
U.S.C. § 2254.

Respondent again argues that, in considering

Petitioner’s claim of ineffective assistance of counsel, this Court
should consider no evidence beyond the trial record and, in
particular, should not entertain evidence from an attorney expert.
Finally, Respondent complains that, in concluding that an evidentiary
hearing is warranted, this Court misconstrued or mischaracterized the
plea offers extended by the State.
Respondent generally raises arguments have already been addressed
or could have been raised previously; those arguments will therefore
not again be considered here.
Neither Greene v. Fisher, 132 S.Ct. at 38, nor Parker v.
Matthews, 132 S.Ct. at 2148, set forth any intervening change in law
that alters either the arguments of the parties or the analysis of the
relevant issues by this Court.

Moreover, this Court need not rely on

the recent decisions of the Supreme Court in

Lafler and Frye in order

to reach the conclusion that an evidentiary hearing is warranted.

As

discussed in the Report and Recommendation, an evidentiary hearing is
warranted by consideration of Hill v. Lockhart, 474 U.S. at 52, and
Strickland v. Washington, 466 U.S. 668 (1984).

As this and other

courts have concluded, the language of the Supreme Court in both Frye
and Lafler “repeatedly and clearly” indicates that the Supreme Court
in those cases was applying an established rule that the state courts

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had misapplied.

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

at *1 (7th Cir. Aug. 6, 2012)(“Both Hill and Frye apply Strickland’s
inquiry into whether ‘the result of the proceeding would have been
different’ to a reasonable probability.”)(quoting Frye, 132 S.Ct. at
1410); In re Perez, 682 F.3d 930 (11th Cir. 2012)(“[T]he language in
Lafler and Frye confirm that the cases are merely an application of
the Sixth Amendment right to counsel, as defined in Strickland, to a
specific factual context”)).

“[T]he Supreme Court has long recognized

that Strickland’s two-part test applies to ‘ineffective assistance of
counsel claims arising out of the plea process.’” Id. at 932 (quoting
Hill v. Lockhart, 474 U.S. at 57).4

Finally and as reflected in the

Report and Recommendation, this Court is cognizant that first plea
offer extended by the State contemplated a sentence of four years
incarceration and an order of restitution and that, subsequently, the

4

In Hill v. Lockhart, 474 U.S. at 52, the Supreme Court considered the
issue of ineffective assistance of counsel in connection with a criminal
defendant’s decision to plead guilty rather than proceed to trial:
[T]he two-part Strickland v. Washington test applies to challenges
to guilty pleas based on ineffective assistance of counsel. In the
context of guilty pleas, the first half of the Strickland v.
Washington test is nothing more than a restatement of the standard
of attorney competence already set forth in Tollett v. Henderson,
supra, and McMann v. Richardson, supra. The second, or
“prejudice,” requirement, on the other hand, focuses on whether
counsel's constitutionally ineffective performance affected the
outcome of the plea process. In other words, in order to satisfy
the “prejudice” requirement, the defendant must show that there is
a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial.
Id. at 58-59 (footnote omitted).
The Supreme Court found it unnecessary to
determine whether counsel’s erroneous advice regarding parole eligibility in
Hill constituted constitutionally ineffective assistance because the
petitioner in that case failed to allege that he would not have pleaded guilty
but would have insisted on proceeding to trial had he been properly advised
regarding parole. Such are not the circumstances here. Petitioner
specifically alleges that, had he been properly advised by his attorney he
would not have proceeded to trial, but would have entered a guilty plea.

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State offered an agreement by which Petitioner would plead guilty to
two counts for each victim in exchange for an order of restitution and
a sentence to be determined by the trial judge.

These facts do

nothing to alter this Court’s conclusions that, assuming the truth of
his allegations, Petitioner has set forth a potentially meritorious
claim for relief under Hill v. Lockhart, 474 U.S. at 52, and that an
evidentiary hearing is required to resolve the factual disputes
reflected in the record.

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WHEREUPON Respondent’s Motion for Relief from Judgment, Doc. No.
46, is DENIED.
Respondent’s unopposed Motion to Continue the Deadline for
Exchange of Witnesses and Documents, Doc. 58, is GRANTED.

The parties

shall exchange witness lists and identify documents to be used at the
evidentiary hearing within fourteen (14) days of the date of this
Opinion and Order.

/s/ Gregory L. Frost_
GREGORY L. FROST
United States District Judge

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As noted supra, the Court will not address Respondent’s remaining
arguments, such as the challenge to the Court’s consideration of new evidence
at the evidentiary hearing, which either were or could have been raised in
connection with the objections to the Report and Recommendation.

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