1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SAMUEL C. WOLFORD, 

 CASE NO. 2:12-CV-0461 

 Petitioner, CRIM. NO. 2:11-CR-016 

 JUDGE GEORGE C. SMITH 

 v. MAGISTRATE JUDGE KING 

UNITED STATES OF AMERICA, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a federal prisoner, brings this motion to vacate, set aside or correct sentence 

pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate, Doc. No. 

35, Respondent’s Motion to Dismiss, Doc. No. 57, Petitioner’s Response, Doc. No. 58, and Brief

in Support, Doc. No. 59, and the exhibits of the parties and follows an evidentiary hearing held 

on July 17, 2013. See Transcript of Evidentiary Hearing, Doc. No. 56 (“Transcript”). For the 

reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to 

Dismiss, Doc. No. 57, be granted and that this action be dismissed. 

I. 

Petitioner’s underlying conviction on possession of child pornography in violation of 18 

U.S.C. § 2252(a)(4)(B) is the result of his guilty plea made pursuant to his January 26, 2011, 

negotiated plea agreement. Plea Agreement, Doc. No. 12. On June 29, 2011, the Court imposed 

a sentence of 120 months imprisonment plus eight years supervised release. Judgment, Doc. No. 

29. Petitioner did not appeal that judgment. 

 On May 29, 2012, Petitioner filed the Motion to Vacate, alleging the following: 

1. Ineffective assistance of counsel Sixth Amendment violation. 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 1 of 10 PAGEID #: <pageID>
2

Failed to adequately advise timely appeal. Failed to require district 

court to utilize § 3553(a) factors in determining appropriate 

sentence. District Court abused discretion procedural error in 

sentencing[.] 

2. District Court violated procedural law by not properly utilizing 

§ 3553(a) factors when sentencing. 

3. Ineffective assistance of counsel violation of Sixth 

Amendment by not properly securing right to appeal and 

requiring District Court to adhere to the stringent rules set forth 

in § 3553(a). 

Counsel was appointed on Petitioner’s behalf to represent him at the evidentiary hearing on his 

claims of ineffective assistance of counsel. Order, Doc. No. 49. 

II. 

 In claims one and three, Petitioner 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, 

see Roe v. Flores–Ortega, 528 U.S. 470, 478 (2000), failed to file an appeal, and failed to require 

that the Court “adhere to. . . rules set forth in § 3553(a).” Motion to Vacate. Attorney Brian 

Rigg, Petitioner’s appointed defense counsel, was the only witness to testify at the evidentiary 

hearing. 

Petitioner’s conviction followed the execution of a search warrant at Petitioner’s 

residence, during which law enforcement officers seized computers and Petitioner made 

admissions regarding his possession of child pornography. Transcript, PageID #163. The 

government offered a plea agreement contemplating an Information charging possession of child 

pornography rather than the more serious charge of receipt of child pornography.1

 Transcript, 

                                                            

1 With exceptions not applicable to this case, possession of child pornography in violation of 18 U.S.C. § 

2252(a)(4)(B) is punishable by a maximum term of imprisonment of ten (10) years. 18 U.S.C. § 2252(b)(2). 

Receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) is punishable by a mandatory minimum term of 

imprisonment of 5 years to a maximum term of imprisonment of 20 years. 18 U.S.C. § 2252(b)(1). 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 2 of 10 PAGEID #: <pageID>
3

PageID #163-64. Rigg advised Petitioner to accept the offer in view of the evidence against him. 

Transcript, PageID #165-66. 

Rigg met personally with Petitioner several times at the Franklin County Jail and also 

communicated with Petitioner by telephone through the assistance of Petitioner’s grandmother. 

Transcript, PageID #156-57. At no time did Petitioner communicate with Rigg by letter. Id. 

Although Rigg could not recall with certainty at the time of the evidentiary hearing, he 

believed that Petitioner was facing up to 180 months incarceration. The Presentence 

Investigation Report calculated a recommended guideline sentence of 121 to 151 months 

incarceration, Transcript, PageID # 168-169, and the Probation Officer recommended a 

sentence of 120 months, i.e., the statutory maximum. Id. Rigg was hopeful, however, that a 

sentence of less than ten years might be possible in light of mitigating factors. Transcript, 

PageID #158-59. 

Rigg and Petitioner reviewed the Presentence Investigation Report and the recommended 

sentence and discussed how the United States Sentencing Guidelines applied to the case. 

Transcript, PageID #159. At sentencing, Rigg argued that Petitioner’s sentence should be 

reduced because the criminal history category over-represented Petitioner’s criminal past and 

because of mitigating factors recognized by § 3553(a),2 i.e., Petitioner’s “really tough 

                                                            

2 18 U.S.C. § 3553(a) provides in relevant part: 

(a) Factors to be considered in imposing sentence – The court shall impose a sentence sufficient, but not 

greater than necessary to comply with the purposes set forth in paragraph (2) of this subsection. The court, 

in determining the particular sentence to be imposed shall consider – 

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; 

(2) the need for the sentence imposed – 

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for 

the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional 

treatment in the most effective manner; 

(3) the kinds of sentences available: 

(4) the kinds of sentence and the sentencing range established for – 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 3 of 10 PAGEID #: <pageID>
4

upbringing” (abuse as a child; raised by grandmother), and mental health and drug/alcohol 

issues. Transcript, PageID #170. Rigg asked for a downward departure from the recommended 

sentence. As noted supra, Petitioner was sentenced to 120 months in prison – i.e., the statutory 

maximum and the sentence recommended in the Presentence Investigation Report. 

The sentencing judge reviewed with Petitioner his appellate rights, Transcript, PageID 

#171, but Petitioner did not indicate at sentencing that he wanted to file an appeal, nor did he tell 

Rigg that he wanted to file an appeal. Id. In fact, Rigg could not recall any discussion with 

Petitioner after the imposition of the sentence, although both he and Petitioner were disappointed 

with the sentence. Transcript, PageID #159-60. 

After sentencing, Rigg did not expressly discuss with Petitioner the filing of an appeal or 

possible issues for appeal because it was his consistent practice to discuss those issues with his 

clients, prior to sentencing, when they reviewed the Presentence Investigation Report. 

Transcript, PageID #162, 169. Moreover, Rigg would discuss how the sentencing judge would 

proceed at the sentencing hearing, including advice regarding the right to appeal, the time for 

filing an appeal and the procedure for filing a notice of appeal. Rigg also routinely advised his 

client that the judge would ask, at the sentencing, whether the defendant intended to pursue an 

appeal, and would advise that the defendant could let the Court or defense counsel know later if 

he wanted to pursue an appeal. Transcript, PageID #169-70. 

As noted supra, Petitioner had no contact with Rigg after the sentencing hearing and 

never asked Rigg to file a notice of appeal. In particular, Rigg received no letter from Petitioner 

                                                                                                                                                                                               

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the 

guidelines – 

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, 

subject to any amendments to such guidelines by act of Congress (regardless of whether such 

amendments have yet to be incorporated by the Sentencing Commission into amendments issued 

under section 994(p) of title 28); and 

(ii) that, except as provided in section 3742(g) are in effect on the date the defendant was sentenced[.] 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 4 of 10 PAGEID #: <pageID>
5

after sentencing; at the time, Rigg utilized a 24-hour answering service, but he received no 

telephone call or message from Petitioner. Transcript, PageID #160-61; 172-73. Petitioner 

never indicated to Rigg that he wanted to pursue an appeal. Transcript, PageID #175. Had 

Petitioner done so, either personally or through his grandmother, Rigg would have immediately 

filed a notice of appeal on Petitioner’s behalf, even if the time for filing an appeal had expired. 

Transcript, PageID #176-77. Rigg did not believe that there was an arguably meritorious issue 

for appeal, in any event, in light of the fact that the sentence actually imposed was one month 

less than the sentence recommended by the United States Sentencing Guidelines. Transcript, 

PageID #179. 

Petitioner did not testify at the evidentiary hearing. 

III. 

The failure of an attorney to file a timely notice of appeal at a defendant's request 

constitutes the ineffective assistance of counsel. 

[E]very Court of Appeals that has addressed the issue has held that 

a lawyer's failure to appeal a judgment, in disregard of the 

defendant's request, is ineffective assistance of counsel regardless 

of whether the appeal would have been successful or not. See 

Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); 

United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); United 

States v. Horodner, 993 F.2d 191, 195 (9th Cir. 1993); Bonneau v. 

United States, 961 F.2d 17, 23 (1st Cir. 1992); United States v. 

Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v. Lockhart, 

849 F.2d 1134, 1137 n. 3 (8th Cir. 1988). We agree with those 

courts and hold that the failure to perfect a direct appeal, in 

derogation of a defendant's actual request, is a per se violation of 

the Sixth Amendment. 

Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). 

[A] lawyer who disregards specific instructions from the defendant 

to file a notice of appeal acts in a manner that is professionally 

unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 

S.Ct. 1715, 23 L.Ed.2d 340 (1969) ; cf. Peguero v. United States, 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 5 of 10 PAGEID #: <pageID>
6

526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (“[W]hen 

counsel fails to file a requested appeal, a defendant is entitled to [a 

new] appeal without showing that his appeal would likely have had 

merit”). This is so because a defendant who instructs counsel to 

initiate an appeal reasonably relies upon counsel to file the 

necessary notice. Counsel's failure to do so cannot be considered a 

strategic decision; filing a notice of appeal is a purely ministerial 

task, and the failure to file reflects inattention to the defendant's 

wishes. 

Roe v. Flores–Ortega, 528 U.S. at 478. In Roe v. Flores–Ortega, the Supreme Court held that an 

attorney is constitutionally required to consult with a criminal defendant regarding the filing of 

an appeal where there is reason to think that “a rational defendant would want to appeal (for 

example, because there are nonfrivolous grounds for appeal)” or where the “defendant 

reasonably demonstrated” to his attorney his desire to appeal. Id. at 480. A court considering a 

claim of ineffective assistance of counsel in this context must consider all the circumstances of 

the case: 

Although not determinative, a highly relevant factor in this inquiry 

will be whether the conviction follows a trial or a guilty plea, both 

because a guilty plea reduces the scope of potentially appealable 

issues and because such a plea may indicate that the defendant 

seeks an end to judicial proceedings. Even in cases when the 

defendant pleads guilty, the court must consider such factors as 

whether the defendant received the sentence bargained for as part 

of the plea and whether the plea expressly reserved or waived 

some or all appeal rights. 

Id. 

In the case presently before the Court, the record does not support Petitioner’s claim of 

ineffective assistance of counsel by reason of a failure to file a notice of appeal. Indeed, 

Petitioner does not now argue – as he did previously, see Motion to Vacate, Doc. No. 35, PageID 

#104 - that he was denied the effective assistance of counsel based on his attorney’s failure to 

file an appeal after having been requested to do so. See Petitioner’s Response, Doc. No. 58, 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 6 of 10 PAGEID #: <pageID>
7

Brief, Doc. No. 59. In any event, there is no evidence whatsoever that Petitioner ever requested 

Rigg to file an appeal on his behalf. 

Petitioner continues to pursue his claim that his attorney performed in a constitutionally 

ineffective manner by failing to consult with him regarding the filing of an appeal. Referring to 

U.S.S.G. § 5G1.1(a),3

 Petitioner contends that the record demonstrates a nonfrivolous ground for 

appeal: i.e., the imposition of the statutory maximum sentence, in light of counsel’s testimony at 

the evidentiary hearing that such a sentence would require consultation with a client regarding 

the filing of an appeal. See Petitioner’s Brief in Support, Doc. No. 59. The Court is not 

persuaded by this argument. 

As an initial matter, the Court discounts Rigg’s testimony - at an evidentiary hearing held 

approximately two (2) years after Petitioner’s sentencing - that Petitioner’s conviction could 

have resulted in a sentence of up to 180 months in prison. The Plea Agreement signed by 

Petitioner and Rigg on January 26, 2011, Doc. No. 12, correctly specified the 10 year maximum 

possible sentence in this case, and the February 18, 2011 arraignment, at which Petitioner 

entered a plea of guilty to the charge, see Minute Entry, Doc. No. 20, would have repeated that 

advice. See Fed. R. Crim. P. 11(b)(1)(H). The Presentence Investigation Report, which 

Petitioner reviewed with his counsel, made clear that, although the guideline imprisonment range 

was 121 to 151 months, the guideline sentence would actually be 120 months in light of the 10 

year statutory maximum penalty. Presentence Investigation Report, Doc. No. 24, p. 19. The 

                                                            

3

   U.S.S.G. § 5G1.1(a) provides: 

§ 5G1.1. Sentencing on a Single Count of Conviction 

Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the 

statutorily authorized maximum sentence shall be the guideline sentence. 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 7 of 10 PAGEID #: <pageID>
8

Court regards Rigg’s testimony at the evidentiary hearing in this regard as based on an 

understandably faulty memory and not determinative to the resolution of Petitioner’s claim. 

In any event, the Court concludes that Rigg satisfied his constitutional obligation to 

consult with his client. Rigg testified that it was his practice to discuss a possible appeal with his 

clients when they reviewed the presentence investigation report, and he did so in this case. Thus, 

in the absence of a specific directive by Petitioner to file a notice of appeal, Rigg had no further 

obligation to Petitioner. 

If counsel has consulted with the defendant, the question of 

deficient performance is easily answered: Counsel performs in a 

professionally unreasonable manner only by failing to follow the 

defendant’s express instruction with respect to any appeal. 

Roe v. Flores-Ortega, 528 U.S. at 478. As noted supra, Petitioner did not instruct Rigg to file a 

notice of appeal on his behalf. 

Moreover, the particular circumstances of this case did not impose any additional 

obligation on Rigg to consult with his client, even in light of the imposition of the statutory 

maximum sentence. Although both defense counsel and Petitioner had hoped for a sentence of 

less than ten years, they had no reasonable ground to expect a lower sentence. As noted supra,

the parties’ plea agreement called for a plea of guilty to a charge of possession of child 

pornography; Petitioner was not charged with the more serious offense of receipt of child 

pornography. In their Plea Agreement, the parties agreed to a total offense level of 33, Doc. No. 

12, PageID # 18, and Petitioner understood that the trial judge could impose any sentence up to 

the statutory maximum. Id., PageID #17. As noted supra, defense counsel reviewed with 

Petitioner the Presentence Investigation Report, including the recommendation that Petitioner be 

sentenced to 120 months in prison in light of the guideline range of 121 to 151 months. 

Moreover, and contrary to Petitioner’s argument now, the trial judge considered the mitigating 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 8 of 10 PAGEID #: <pageID>
9

factors raised by defense counsel under § 3553(a) prior to the imposition of sentence. See

Statement of Reasons, Doc. No. 30, PageID #85 (sealed). 

Because the District Court imposed a sentence that was within the properly calculated 

range recommended under the United States Sentencing Guidelines, that sentence is accorded a 

“rebuttable presumption of reasonableness.” See United States v. Asher, 239 Fed. Appx. 180, 

184 (6th Cir. Aug. 8, 2007)(sentence within the properly calculated Guidelines range, even 

though the statutory maximum, is entitled to a “rebuttable presumption of reasonableness”); see, 

e.g., Zendezas v. United States, 2010 WL 2541726, at *4 (W.D. Mich. June 21, 2010)(statutory 

maximum, which became the guidelines sentence under U.S.S.G. § 5G1.1(a), is reasonable 

where the sentencing judge, in imposing sentence, considered the factors under § 3553(a)). 

“[W]here a sentence falls within the appropriate range under the sentencing guidelines, the 

burden shifts to the defendant to show that the length of the sentence is unreasonable in light of 

the § 3553 factors.” United States v. Oglesby, 210 Fed. Appx. 503, 507 (6th Cir. Jan. 30, 

2007)(citation omitted). Reversal of such a sentence on appeal requires a showing of substantive 

unreasonableness such as, for example, “‘selecting the sentence arbitrarily, basing the sentence 

on impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an 

unreasonable amount of weight to any pertinent factor.’” United States v. Hill, 462 Fed. Appx. 

586, 588 (6th Cir. Feb. 17, 2012)(quoting United States v. Webb, 403 F.3d 373, 385 (6th Cir. 

2005)) (footnote omitted). The record in this action simply does not support such a showing, nor 

does it appear that a nonfrivolous ground for appeal was available to Petitioner. His counsel, 

therefore, had no obligation to further consult with him. 

 It is therefore RECOMMENDED that this action be DISMISSED. 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 9 of 10 PAGEID #: <pageID>
10

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, 106 S.Ct. 466 (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 

September 18, 2013 

Case: 2:11-cr-00016-GCS-NMK Doc #: 60 Filed: 09/18/13 Page: 10 of 10 PAGEID #: <pageID>