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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TERRY PATTERSON, 

CASE NO. 2:13-CV-00033

Petitioner, CRIM. NO. 2:12-CR-00044

JUDGE ECONOMUS

v. MAGISTRATE JUDGE ABEL

UNITED STATES OF AMERICA, 

Respondent. 

OPINION AND ORDER

On January 18, 2013, the Magistrate Judge issued a Report and Recommendation

pursuant to Rule 4 of the Rules Governing Section 2255 Cases in the United States District 

Courts recommending that the instant motion to vacate, set aside or correct sentence be 

dismissed based on Petitioner’s failure to establish cause and prejudice for failing to raise his 

claims on appeal. Petitioner has filed objections to the Magistrate Judge’s Report and 

Recommendation. Doc. 36. For the reasons that follow, Petitioner’s Objections are 

OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This 

action hereby is DISMISSED. 

Petitioner’s Motion to Compel the Court to issue a show cause order for Respondent to 

file a Return of Writ in response to the § 2255 petition, Doc. 37, is DENIED. 

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims as 

waived due to his failure to raise them on direct appeal. As cause for this procedural default, 

Petitioner asserts that he was denied effective assistance of counsel. See Objections. 

In claim one, Petitioner asserts that the District Court lacked jurisdiction. In claim two, 

Petitioner asserts his sentence was “excessive,” see Petition, PageID #69, in violation of the 

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Eighth Amendment.1 As noted by the Magistrate Judge, these claims, being apparent from the 

face of the record, should have been raised on direct appeal, but were not. Petitioner therefore 

has waived such claims for federal habeas corpus review. 

Habeas review is an extraordinary remedy and “ ‘will not be 

allowed to do service for an appeal.’ ” Reed v. Farley, 512 U.S. 

339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting 

Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590 1591, 91 

L.Ed. 1982 (1947)). Indeed, “the concern with finality served by 

the limitation on collateral attack has special force with respect to 

convictions based on guilty pleas.” United States v. Timmreck, 441 

U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979).

Bousley v. United States, 523 U.S. 614, 621 (1998). Claims which have been defaulted because 

they were not raised on direct appeal can be considered on their merits when presented in a §

2255 petition only if the defendant can show “both (1) ‘cause’ excusing his ... procedural default, 

and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United States v. 

Frady, 456 U.S. 152, 168 (1982). The primary exception to that rule is “that failure to raise an 

ineffective assistance of counsel claim on direct appeal does not bar the claim from being 

brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 

500, 509 (2003). 

If a claim has been procedurally defaulted and the petitioner is unable to show “cause and 

prejudice,” he may still obtain review of the claim if he can demonstrate that, due to 

constitutional error, the trial court proceedings “‘probably resulted in the conviction of one who 

is actually innocent.’” See Bousley v. United States, 523 U.S. at 623 (quoting Murray v. Carrier, 

477 U.S. 478, 496 (1986)). To make that showing, the petitioner must demonstrate that “‘it is 

 1 The Court notes that Petitioner agreed to a sentence of 120 months pursuant to Criminal Rule 11(c)(1)(C), see Plea 

Agreement, PageID #18–#19, and the Court accepted the Plea Agreement, binding itself to the sentence imposed. 

See FED R. CRIM. P. 11(c)(1)(C), 11(c)(4). 

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more likely than not that no reasonable juror would have convicted him.’” Bousley, (quoting 

Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). 

The United States Court of Appeals for the Sixth Circuit has held that “nonconstitutional 

claims not raised at trial or on direct appeal are waived for collateral review except where the 

errors amount to something akin to a denial of due process.” Grant v. United States, 72 F.3d 

503, 505 (6th Cir. 1996). Thus, “there are three types of issues that a section 2255 motion 

cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed 

circumstances; (2) nonconstitutional issues that could have been but were not raised on direct 

appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 

petitioner demonstrates cause for the procedural default as well as actual prejudice from the 

failure to appeal.” Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on 

other grounds Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). The claim that a 

sentence was unreasonable or excessive, but not unconstitutional, falls within these three 

categories. See Grant, supra (“mistakes in the application of the sentencing guidelines, will 

rarely, if ever, warrant relief from the consequences of waiver”).

Petitioner argues that imposition of ten years imprisonment constituted cruel and unusual 

punishment in violation of the Eighth Amendment. 

Here, although petitioner does not directly argue that he received ineffective assistance of 

counsel, he suggests that his attorney should have raised this argument, stating “My lawyer dared 

not challenge the sentence given the plea, even on Constitutional grounds.” Objections, PageID 

#82. The only way the claims could have been preserved, however, is by direct appeal, and he 

does not argue that he asked counsel to appeal. Nonetheless, the Court will consider whether 

there is any possibility that Petitioner’s claims are claims which should have been raised on 

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appeal by counsel, or, stated the other way, whether counsel was constitutionally ineffective by 

failing to pursue the claims on appeal.

The right to counsel guaranteed by the Sixth Amendment is the right to the effective 

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for 

demonstrating a claim of ineffective assistance of counsel is composed of two parts:

First, the defendant must show that counsel's performance was 

deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the “counsel” 

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that deficient performance prejudiced the 

defense. This requires showing that counsel's errors were so 

serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's performance 

must be “highly deferential.” Id. at 689.

With respect to the first prong of the Strickland test, “[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional assistance.” Id. To establish the 

second prong of the Strickland test, prejudice, a petitioner must demonstrate that there is a 

reasonable probability that, but for counsel's errors, the result of the proceedings would have 

been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. Because Petitioner must satisfy both prongs of the Strickland test 

to demonstrate ineffective assistance of counsel, should the court determine that Petitioner has 

failed to satisfy one prong, it need not consider the other. Id. at 697. 

The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781–82 

(1987). When the claimed deficiency in counsel’s performance is failure to file an appeal, but 

there is no evidence that the defendant requested that an appeal be taken, counsel’s performance 

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is constitutionally suspect only “when there is reason to think either (1) that a rational defendant 

would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) 

that this particular defendant reasonably demonstrated to counsel that he was interested in 

appealing.” Roe v. Flores Ortega, 528 U.S. 470, 480 (2000). Given that petitioner does not 

claim that he indicated in any way a desire to appeal, he may establish ineffective assistance of 

counsel as cause to excuse his failure to raise his claims on appeal only by showing that there 

was some reason to think, in this case, that there was some nonfrivolous issue which could have 

been raised on appeal. 

Here, there is no reason to think that is the case. In order for a defendant to make out a 

claim under the Eighth Amendment, the Court of Appeals has explained that 

[t]he Eighth Amendment provides: “Excessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted.” U.S. Const. amend. VIII.... [T]he Supreme 

Court has interpreted the Eighth Amendment to contain a “narrow 

proportionality principle.” Harmelin v. Michigan, 501 U.S. 957, 

996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., 

concurring); United States v. Layne, 324 F.3d 464, 474 (6th 

Cir.2003). But that interpretation “does not require strict 

proportionality between crime and sentence.” Harmelin, 501 U.S. 

at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (citing Solem v. 

Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)); 

see also Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 

L.Ed.2d 382 (1980) (Eighth Amendment “prohibits imposition of a 

sentence that is grossly disproportionate to the severity of the 

crime”)....

United States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011). 

To illustrate how narrow this proportionality principle is, the Court of Appeals stated, in 

United States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994), and has consistently reaffirmed, 

that “[g]enerally, a sentence within statutory limitations does not violate the Eighth 

Amendment.” See also United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003); Austin v. 

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Jackson, 213 F.3d 298, 302 (6th Cir. 2000). Petitioner’s ten year sentence is certainly within the 

statutory range of five to twenty years. Further, in an unpublished opinion, the Court of Appeals 

rejected a defendant’s challenge to a ten-year sentence (which was the statutory minimum 

sentence in that case because the defendant had a prior similar conviction) imposed under a 

different child pornography statute, 18 U.S.C. §2252A, holding that “a ten year sentence for this 

kind of crime is neither unusual nor disproportionate to the underlying offense.” United States v. 

McIntosh, 414 Fed. Appx. 840, 841, unpublished, 2011 WL 924537 (6th Cir. March 17, 2011). 

The McIntosh court noted that many other courts of appeals had upheld similar sentences under 

that statute, but it also cited to a case rejecting an Eighth Amendment challenge to §2252's 15-

year mandatory minimum sentence for receipt of child pornography. See id. at 841-42 (citing 

United States v. Weis, 487 F.3d 1148 (8th Cir. 2007)). 

There does not appear to be any law which would support an argument that a ten year 

sentence for violating this statute is unconstitutional. The only case where a court has found an 

Eighth Amendment violation for a sentence imposed under §2252 appears to be United States v. 

C.R., 792 F.Supp. 2d 343 (E.D.N.Y. 2011), but that case is significantly different from this one 

because the defendant in that case was young and had a difficult family history and a long 

history of substance abuse. Moreover, it is not reasonable to assume that even if C.R. had some 

persuasive value, the Court of Appeals for this Circuit would follow it. The Court cannot find 

either that an attorney who failed to advise petitioner to appeal on these grounds, which lack any 

substantial support, was constitutionally ineffective, or that petitioner was prejudiced by the 

failure to appeal. It simply cannot be said that, if such an appeal had been filed, petitioner would 

likely receive a different sentence. 

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In order to find that counsel was ineffective, the Court would have to conclude that no 

reasonable attorney would have foregone an appeal - which, given the complete absence of any 

supporting case law, is a conclusion the Court cannot reach - and that the failure to appeal 

prejudiced petitioner. The Court simply cannot make such findings, and petitioner’s procedural 

default of his Eighth Amendment claims cannot be excused by means of an assertion of 

ineffective assistance of counsel.

 Petitioner’s second claim attacks the constitutionality of the statute under which he was 

convicted. Briefly summarized, his argument is that the non-commercial viewing of child 

pornography on the internet is neither economic activity nor one which has any connection with 

interstate commerce, and that the federal courts lack jurisdiction over his conduct, which he 

contends was only intrastate in nature. See Motion to Vacate, 72-74. He does not appear to 

claim that his counsel was ineffective for failing to raise this issue on appeal, and he asserts that 

there is no requirement to raise jurisdictional grounds at any earlier time in order to preserve the 

claim for purposes of a motion to vacate filed under § 2255.

Petitioner is incorrect about the effect of his guilty plea on this type of claim. In United 

States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), the Court of Appeals, quoting its earlier 

decision in United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008), held that “[t]o assert a 

jurisdictional challenge successfully, ‘a defendant who enters a guilty plea must establish that the 

face of the indictment failed to charge the elements of a federal offense.’” In that case, the Court 

of Appeals noted that in United States v. Studabaker, 578 F.3d 423 (6th Cir. 2009)(a §2252A 

child pornography case), it had “determined that, in spite of the defendant's attempt to 

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characterize his claim as impacting our jurisdiction, the interstate commerce argument actually 

presented a non jurisdictional issue.” Id. at 385. The Court of Appeals also rejected the 

defendant’s attempt to change his claim to one attacking the facial validity of the charges, 

observing that “[t]he felony information unambiguously lists all of the elements required for 

conviction” including the use of materials which traveled in interstate commerce. It also noted 

that the defendant admitted to such allegations at the plea hearing. Id.

Here, the Information filed in this case contains allegations concerning interstate 

commerce. It states that Petitioner received visual depictions of child pornography “using a 

means or facility of interstate or foreign commerce, or that has been mailed, or had been shipped 

or transported in or affecting interstate or foreign commerce, or which contained materials which 

had been mailed or so shipped or transported by any means including by computer ....” See

Doc. 10. Thus, in accordance with United States v. Corp, supra, this Court finds Petitioner’s 

“jurisdictional” challenge to the face of the indictment to have been waived.

Further, the record of this case indicate that Petitioner’s activities occurred through a 

means of interstate commerce by use of the internet. The PreSentence Investigation Report

indicates that Petitioner acknowledged to investigators using P2P software to download images 

and movie containing child pornography. He searched for child pornography images and videos 

on a daily basis. He estimated he had downloaded between 1,000 and 2,000 files containing 

child pornography. PreSentence Investigation Report, ¶ 19. Forensic examination of 

Petitioner’s computer revealed the presence of images and movies containing child pornography. 

Id. ¶ 20. 

By virtue of petitioner’s admitted use of the internet, the United States established, in this 

case, that the crime petitioner pleaded guilty to was within Congress’ power to regulate. Just 

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recently, the Court of Appeals affirmed Congress’ broad authority under the Commerce Clause 

to regulate even the intrastate production of child pornography because “Congress has the power 

to regulate purely local activities that are part of an economic class of activities that have a 

substantial effect on interstate commerce....” United States v. Rose, __ F.3d. __, 2013 WL 

1664697, *7 (6th Cir. April 18, 2013). It had previously held that §2252 is constitutional on its 

face based on its reference to images which traveled in interstate or foreign commerce. See, e.g.,

United States v. Halter, 259 Fed. Appx. 738 (6th Cir. Jan 7, 2008), citing United States v. Corp., 

supra. Thus, there is simply no merit to any of petitioner’s jurisdictional claims in this case, or 

to his assertion that the receipt of child pornography through the internet is wholly intrastate 

activity which is beyond the reach of the federal government to regulate or criminalize.

WHEREUPON, Petitioner’s Objections are OVERRULED. The Report and 

Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED. 

Petitioner’s Motion to Compel the Court to issue a show cause order for Respondent to 

file a Return of Writ in response to the § 2255 petition, Doc. 37, is DENIED. 

IT IS SO ORDERED. 

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