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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILLIAM MORRISON, 

 

 Petitioner, CASE NO. 2:13-CV-00188 

 CRIM. NO. 2:11-cr-0023 

 v. JUDGE GREGORY L. FROST 

MAGISTRATE JUDGE KING 

UNITED STATES OF AMERICA, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

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

pursuant to 28 U.S.C. § 2255. Motion to Vacate, ECF 56. This matter is before the Court on the 

Motion to Vacate, Respondent’s Return of Writ, ECF 63, Petitioner’s Memorandum of Law in 

Support of an Application Section 2255(F)(1) and Seeks an Evidentiary Hearing, ECF 65 

[“Memorandum in Support”], and the exhibits of the parties. For the reasons that follow, the 

Magistrate Judge RECOMMENDS that counsel be appointed to represent Petitioner at an 

evidentiary hearing on his claim that he was denied the effective assistance of counsel because 

his attorney failed to file an appeal on his behalf and failed to consult with him regarding the 

filing of an appeal, and because he performed in a constitutionally ineffective manner during pretrial proceedings. The Magistrate further RECOMMENDS that the remainder of Petitioner’s 

claims be DISMISSED. 

 Petitioner’s Motion to Appoint Counsel, Doc. No. 64, and Request for an Evidentiary

Hearing, see Doc. No. 65, are GRANTED. 

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Facts and Procedural History 

Petitioner’s underlying convictions on a charge of being a felon in possession of a firearm 

and possession with intent to distribute over 50 grams of crack cocaine are the result of his 

negotiated Plea Agreement. See ECF 23. In a Judgment Entry filed March 1, 2012, the Court 

imposed an aggregate term of 132 months’ imprisonment. ECF 49. Petitioner did not file an 

appeal from that judgment. 

On March 1, 2013, Petitioner filed the Motion to Vacate, alleging that he was denied the 

effective assistance of counsel during pre-trial proceedings and because his attorney failed to file 

an appeal after having been instructed to do so and failed to consult with Petitioner regarding the 

filing of an appeal. Petitioner also alleges that the Court made various sentencing errors – i.e.,

that his gun and drug convictions were improperly calculated as “separate units” under the 

advisory United States Sentencing Guidelines, thus improperly resulting in a two level increase 

in his recommended sentence, Motion to Vacate, PageID #222, Memorandum in Support, 

PageID #269; that his prior criminal history was improperly calculated, Motion to Vacate,. 

PageID #224, Memorandum in Support, PageID #271; and that the Court improperly based an 

upward departure in Petitioner’s sentence on erroneous information, Motion to Vacate, PageID 

#225, Memorandum in Support, PageID #272. Respondent acknowledges that an evidentiary 

hearing must be conducted on Petitioner’s claim that his attorney failed to file an appeal after 

having been requested to do so. Return of Writ, PageID #244. Respondent contends that 

Petitioner’s remaining claims have been waived or are without merit. 

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Ineffective Assistance of Counsel 

Petitioner alleges that he was denied the effective assistance of counsel during pre-trial 

proceedings and because his attorney failed to consult with Petitioner regarding the filing of an 

appeal and failed to file an appeal after having been requested to do so. 

The right to counsel guaranteed by the Sixth Amendment to the United States 

Constitution is the “right to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 

668, 686 (1984). In order to prevail on a claim of ineffective assistance of counsel, a defendant 

(or petitioner) must meet the now-familiar two-prong Strickland test: 

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. 

Id. at 687. The Supreme Court emphasized that “[j]udicial scrutiny of counsel's performance 

must be highly deferential.” Id. at 689. “A court must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Id.

Moreover, “[a]n error by counsel, even if professionally unreasonable, does not warrant 

setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” 

Id. at 692. Rather, a defendant must demonstrate prejudice in order to prevail on a claim of 

ineffective assistance of counsel. Id. at 693. In this regard, a defendant must establish that a 

reasonable probability exists 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 a defendant must satisfy both prongs of the 

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Strickland test to demonstrate the ineffective assistance of counsel, should a court determine that 

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

The two-prong Strickland test for ineffective assistance of counsel applies to a 

defendant's challenge to counsel’s performance during plea negotiations in a criminal 

prosecution. Missouri v. Frye, – U.S. –, –, 132 S.Ct. 1399, 1405 (2012) (citing Hill v. Lockhart, 

474 U.S. 52, 58 (1985)). When a defendant challenges his counsel's performance as it relates to 

plea proceedings, the “first half of the Strickland v. Washington test is nothing more than a 

restatement of the standard of attorney competence.” Id. “The second, or ‘prejudice,’ 

requirement, on the other hand, focuses on whether counsel's constitutionally ineffective 

performance affected the outcome of the plea process.” Id. at 59. “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. 

In many guilty plea cases, the “prejudice” inquiry will closely 

resemble the inquiry engaged in by courts reviewing ineffectiveassistance challenges to convictions obtained through a trial. For 

example, where the alleged error of counsel is a failure to 

investigate or discover potentially exculpatory evidence, the 

determination whether the error “prejudiced” the defendant by 

causing him to plead guilty rather than go to trial will depend on 

the likelihood that discovery of the evidence would have led 

counsel to change his recommendation as to the plea. This 

assessment, in turn, will depend in large part on a prediction 

whether the evidence likely would have changed the outcome of a 

trial. Similarly, where the alleged error of counsel is a failure to 

advise the defendant of a potential affirmative defense to the crime 

charged, the resolution of the “prejudice” inquiry will depend 

largely on whether the affirmative defense likely would have 

succeeded at trial. 

Id. at 59–60 (internal citation omitted); see also Dando v. Yukins, 461 F.3d 791, 798 (6th Cir. 

2006) (quoting Hill, 474 U.S. at 59) (noting that to establish prejudice, a “defendant must show 

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that ‘but for counsel's errors, he would not have pleaded guilty and would have insisted on going 

to trial’”). “[T]he assessment of prejudice must include a prediction of the likely outcome at 

trial.” Id. 

The United States Court of Appeals for the Sixth Circuit has described the obligation of 

defense counsel as it relates to advice during the plea negotiations stage 

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. 

Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (citing United States v. Day, 969 F.2d 

39, 43 (3d Cir. 1992)). 

Supporting this duty is the concomitant obligation of conducting 

“reasonable investigations or [reaching] a reasonable decision that 

makes particular investigations unnecessary.” Strickland, 466 U.S. 

at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Counsel cannot 

responsibly advise a client about the merits of different courses of 

action, [and] the client cannot make informed decisions, . . . unless 

counsel has first conducted a thorough investigation. . . .” 

Dickerson v. Bagley, 453 F.3d 690, 694 (6th Cir. 2006) (noting that 

such an investigation “should begin as quickly as possible” in 

order to aid in plea negotiations (internal quotation marks 

omitted)). The Sixth Amendment does not require that counsel 

provide an absolutely correct assessment of the comparative risks 

of a guilty plea versus a trial, but the Supreme Court has 

“recognize[d] that counsel must at least be aware of such risks, 

especially where the lack of awareness directly impacts the 

reasoning behind whatever advice is provided.” Miller [v. Straub], 

299 F.3d [570,] 584 [6th Cir. 2002](Gilman, J., concurring). 

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Titlow v. Burt, 680 F.3d 577, 587 (6th Cir. 2012), reversed on other grounds, 134 S.Ct. 10 

(2013). 

 Petitioner also alleges that he was denied the effective assistance of counsel because his 

attorney failed to file an appeal after having been requested to do so and failed to consult with 

Petitioner regarding the filing of an appeal. The failure of an attorney to file a timely appeal 

upon 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 Rodriguez v. United States, 395 U.S. 327, 89 

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

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. 470, 478 (2000). Where a criminal defendant neither instructs 

his attorney to file an appeal nor asks that an appeal be taken, a court must consider whether the 

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attorney consulted with his client regarding the filing of an appeal. If defense counsel consulted 

with his client regarding the filing of an appeal, he performs in a professionally unreasonable 

manner only if he fails to follow a defendant's express instructions with respect to an appeal. Id.

If counsel has not consulted with his client regarding the filing of an appeal, the court must 

consider whether this failure constitutes deficient performance. Id. 

[C]ounsel has a constitutionally imposed duty to consult with the 

defendant about an appeal 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. In making this determination, courts 

must take into account all the information counsel knew or should 

have known. See id., at 690, 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (focusing on the totality of the circumstances). 

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. Only by considering all relevant factors 

in a given case can a court properly determine whether a rational 

defendant would have desired an appeal or that the particular 

defendant sufficiently demonstrated to counsel an interest in an 

appeal. 

Id. at 479–80. 

 Petitioner’s Motion to Vacate, in which Petitioner alleges that he was denied the effective 

assistance of counsel during plea negotiations, that his attorney failed to consult with him 

regarding the filing of an appeal, and that his attorney failed to file the appeal after having been 

requested to do so, was executed under penalty of perjury. Although Petitioner’s trial counsel 

contests all of Petitioner’s allegations in connection with these claims, Affidavit of Attorney 

Richard A. Cline, Exhibit A to Return of Writ, these claims present factual disputes that can be 

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resolved only after an evidentiary hearing. The Magistrate Judge therefore RECOMMENDS

that counsel be appointed to represent Petitioner at an evidentiary hearing on these claims. 

Claimed Sentencing Errors 

Petitioner’s claims regarding the alleged sentencing errors that occurred in this case 

should have been raised on appeal because they would have appeared on the face of the record; 

those claims were not raised on appeal. Thus, absent a showing of cause and prejudice or a 

showing of actual innocence, Petitioner has waived all of those claims for federal habeas corpus 

review. See Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 

U.S. 152, 167–68 (1982). This rule of waiver, however, does not ordinarily apply to claims 

attributable to the ineffective assistance of counsel. 

Petitioner asserts, as cause for his failure to raise these claims on appeal, the ineffective 

assistance of his counsel. Memorandum in Support, PageID #266-67. See Coleman v. 

Thompson, 501 U.S. 722, 753–54 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986) 

(ineffective assistance of counsel may constitute cause for a procedural default). However, and 

as noted by Respondent, Petitioner’s trial counsel raised all of the alleged errors about which 

Petitioner now complains. See Sentencing Memorandum of William Morrison, ECF 39, PageID 

#88, Defendant’s Memorandum of Law Regarding No Contest Plea in State Court, ECF 41, 

Morrison’s Memo Contra Government’s Request for Upward Variance, ECF 47. See also 

Defendant’s Memorandum of Law Regarding Career Offender Issue, ECF 40. After conducting 

two (2) sentencing hearings, see Minute Entry, ECF 42; Minute Entry, ECF 48, the objections 

relating to the claims about which Petitioner now complains were overruled by the Court. 

Petitioner has not established either that the performance of his trial counsel in this regard was 

constitutionally deficient or that any deficiency in his counsel’s performance worked to 

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Petitioner’s prejudice. See Strickland, 466 U.S. at 687. Thus, Petitioner has failed to establish 

the constitutionally ineffective assistance of counsel in connection with the failure to preserve his 

claims relating to his sentences. It follows, then, that Petitioner has waived those claims for 

purposes of federal habeas corpus relief. 

Recommended Disposition 

WHEREUPON, the Magistrate Judge RECOMMENDS that counsel be appointed to 

represent Petitioner at an evidentiary hearing on his claims that he was denied the effective 

assistance of counsel because his attorney failed to file an appeal on his behalf and failed to 

consult with him regarding the filing of an appeal, and because his attorney performed in a 

constitutionally ineffective manner during pre-trial proceedings. The Magistrate Judge further 

RECOMMENDS that the remainder of Petitioner’s claims be DISMISSED. 

 Petitioner’s Motion to Appoint Counsel, Doc. No. 64, and Request for an Evidentiary

Hearing, see Doc. No. 65, are GRANTED. 

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). 

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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). 

 s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

April 4, 2014 

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