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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SAMUEL C. WOLFORD, 

 Petitioner, 

CASE NO. 2:12-CV-0461 

 v. CRIM. NO. 2:11-CR-016 

 JUDGE GEORGE C. SMITH 

 MAGISTRATE JUDGE KING 

UNITED STATES OF AMERICA, 

 Respondent. 

OPINION AND ORDER 

 On September 18, 2013, and after holding an evidentiary hearing, the United States 

Magistrate Judge recommended that Respondent’s Motion to Dismiss, Doc. No. 57, be granted 

and that this action be dismissed. Report and Recommendation, Doc. No. 60. Petitioner has 

objected to that recommendation. Objection, Doc. No. 61. For the reasons that follow, 

Petitioner’s Objection, Doc. No. 61, is OVERRULED. The Report and Recommendation, Doc. 

No. 60, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

 Petitioner was convicted of possession of child pornography in violation of 18 U.S.C. § 

2252(a)(4)(B) and was sentenced to 120 months in prison – the maximum sentence authorized by 

the statute and the sentence recommended by the Sentencing Guidelines - to be followed by 8 

years of supervised release. Petitioner’s Motion to Vacate alleges that he was denied the 

effective assistance of counsel because his attorney failed to properly consult with him regarding 

the filing of an appeal, failed to file an appeal and failed to require that the Court “adhere to . . . 

rules set forth in § 3553(a).” Motion to Vacate. The Magistrate Judge found that Petitioner 

never requested his attorney to file an appeal on Petitioner’s behalf and concluded that 

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Petitioner’s trial counsel satisfied his constitutional obligation to consult with his client, see Roe 

v. Flores-Ortega, 528 U.S. 470 (2000), and that in any event Petitioner had no non-frivolous 

grounds for appeal. Petitioner objects to the Magistrate Judge’s conclusion that Petitioner’s trial 

counsel satisfied his constitutional obligation to consult with his client and that Petitioner had no 

non-frivolous grounds for appeal. 

Petitioner’s objections, and his surviving claims,1 are grounded on the premise that he 

had a non-frivolous basis for an appeal: the imposition of the statutory maximum sentence, in 

light of counsel’s testimony at the evidentiary hearing that the imposition of a maximum 

sentence requires the consultation with a client regarding the filing of an appeal. That testimony 

was offered in the context of counsel’s recollection at the evidentiary hearing that Petitioner 

faced up to 180 months in prison. The Magistrate Judge discounted that testimony as based on 

counsel’s flawed memory, which the Magistrate Judge attributed to the lapse of time between the 

events surrounding Petitioner’s sentencing and the evidentiary hearing. Report and 

Recommendation, p. 7. Petitioner objects to that finding and to the conclusions of the Magistrate 

Judge. 

This Court has conducted a de novo review. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 

72(b). The Court is not persuaded by Petitioner’s arguments. As noted by the Magistrate Judge, 

the Plea Agreement that Petitioner and his attorney signed on January 21, 2011, plainly indicates 

that Petitioner faced a statutory maximum of ten years imprisonment, see Doc. No. 12, as does 

the Presentence Investigation Report, which defense counsel reviewed with Petitioner prior to 

sentencing. In fact, the guideline imprisonment range for Petitioner was 121 to 151 months in 

prison, i.e., above the statutory maximum. Approximately two years had elapsed since the date 

                                                            

1 Petitioner appears to have abandoned any contention that his attorney improperly failed to file a notice of appeal 

after having been requested to do so. 

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of sentencing until the evidentiary hearing. Having reviewed the record, this Court agrees with 

the findings of the Magistrate Judge in this regard. 

 This Court likewise concludes that defense counsel satisfied his obligation to consult with 

his client regarding the filing of an appeal. Petitioner argues that a pre-sentencing consultation 

regarding an appeal cannot meet the duty to consult under Roe v. Flores-Ortega. Objection,

PageID #61. This Court disagrees. Prior to the sentencing hearing, Petitioner and his attorney 

reviewed the Presentence Investigation Report and were aware of the statutory maximum term 

of imprisonment, the recommendation of the probation officer, and the arguments that would be 

made – and in fact were made - by counsel in an attempt to obtain a lower sentence. Further, the 

Court does not agree with Petitioner’s contention that “any rational defendant” would have 

wanted to appeal the sentence imposed. The charge of possession of child pornography to which 

Petitioner pleaded guilty pursuant to the terms of a plea agreement was less severe that the 

charge of receipt of child pornography which Petitioner could have faced.2

 Further, the sentence 

actually imposed fell within the properly calculated guideline range and considered the 

mitigating factors raised by Petitioner’s counsel at sentencing. The Court did not impose an 

unanticipated or unreasonable sentence in view of this record. 

For all the reasons detailed in the Magistrate Judge’s Report and Recommendation, this 

Court agrees that Petitioner has failed to establish a denial of the effective assistance of counsel. 

 Petitioner’s Objection, Doc. No. 61, is OVERRULED. The Report and 

Recommendation, Doc. No. 60, is ADOPTED and AFFIRMED. Respondent’s Motion to 

Dismiss, Doc. No. 57, is GRANTED. 

This action is hereby DISMISSED. 

                                                            

2 Indeed, the Complaint that initiated the prosecution charged Petitioner with receipt of child pornography in 

violation of 18 U.S.C. § 2252(a)(2). Complaint, Doc. No. 1. 

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 The Clerk shall enter FINAL JUDGMENT.

 /s/ George C. Smith 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT 

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