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Clifton v. United States

United States District Court, D. Maryland

September 26, 2016

ALAN J. CLIFTON Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. RDB-16-0126

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         On March 21, 2013, a jury convicted Alan J. Clifton ("Petitioner" or "Clifton") of three offenses involving child pornography, including transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (Count 1); receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count 2); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(b) (Count 3). See Jury Verdict, ECF No. 51. Subsequently, this Court sentenced Clifton to 84 months imprisonment as to each count to run concurrently, for a total term of 84 months. See J., ECF No. 72. Currently pending before this Court are Clifton's Motion to Vacate, Set Aside or Correct Sentence (ECF No. 94) pursuant to 28 U.S.C. § 2255 and Clifton's Supplement to Motion to Vacate (ECF No. 97).[1] He contends that his counsel's ineffective performance violated his Sixth Amendment Rights.

         Having reviewed the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Petitioner's Motion to Vacate, Set Aside or Correct Sentence (ECF No. 94) is DENIED, and Petitioner's Supplement to Motion to Vacate (ECF No. 97) is also DENIED.

         BACKGROUND

         On October 10, 2011, Detective Christina Childs of the Baltimore County Police Department, using file-sharing software available only to law enforcement, discovered a peer-to-peer file-sharing account sharing 15 files, 11 of which bore names consistent with child pornography. See Jury Trial - Day 2, ECF No. 46. Detective Childs was able to download three of the files, all of which depicted child pornography. See Jury Trial - Day 2, ECF No. 46. The user information associated with the account's IP address was subpoenaed from Comcast, which led investigators to Clifton. See Jury Trial - Day 2, ECF No. 46. A search and seizure warrant was executed at Clifton's home on November 30, 2011. See Jury Trial - Day 2, ECF No. 46. Officers interviewed Clifton for 40 minutes and seized, among other things, hard drives, computers, CDs, and DVDs. See Jury Trial - Day 2, ECF No. 46.

         The Grand Jury for the District of Maryland charged Clifton with possessing child pornography, see Indictment, ECF No. 1, to which Clifton pled Not Guilty. See Arraignment, ECF No. 12. Subsequently, the Grand Jury filed a First Superseding Indictment, which charged Clifton with transporting child pornography (“Count 1”), in violation of 18 U.S.C. § 2252(a)(1); receiving child pornography (“Count 2”), in violation of 18 U.S.C. § 2252(a)(2); and possessing child pornography (“Count 3”), in violation of 18 U.S.C. § 2252(a)(4)(B). See First Superseding Indictment, ECF No. 19. Clifton pled Not Guilty to all three counts. See Arraignment, ECF No. 15. On March 18, 2013, the matter proceeded to a jury trial before this Court. See Jury Trial - Day 1, ECF No. 45.

         During the course of the trial, the Government called six witnesses, one of which was FBI Agent Michael Gordon. See Jury Trial - Day 2, ECF No. 46. Gordon was admitted as an expert witness in the field of peer-to-peer file-sharing. See Official Transcript ECF No. 83. Gordon testified about peer-to-peer file-sharing generally, the process of installing a file-sharing platform called FrostWire, [2] downloading files, and manual and automatic file-sharing. Id. Additionally, Gordon testified about Clifton's customized FrostWire account settings. Id. On cross examination, defense counsel addressed FrostWire's default setting to automatically “share” files, Clifton's efforts to prevent such sharing, and how even Gordon had to be taught how to turn off those settings. Id. The defense called one witness, Alan J. Clifton. See Jury Trial - Day 3 ECF No. 47.

         The trial concluded on March 21, 2013, and the jury found Clifton guilty of all three counts. See Jury Verdict, ECF No. 49. Clifton was sentenced to imprisonment for a term of 84 months as to Count 1, 84 months as to Count 2, and 84 months as to Count 3, each to run concurrently for a total term of 84 months. See Judgment, ECF No. 72.

         Clifton appealed this Court's judgment to the United States Court of Appeals for the Fourth Circuit. See Notice of Appeal, ECF No. 73. On appeal, Clifton challenged the sufficiency of evidence for the mens rea element of Count 1. United States. v. Clifton, 587 F. App'x. 49 (4th Cir. 2014) (per curiam) (unpublished). Specifically, Clifton argued that there was insufficient evidence to conclude that he “knowingly” transported child pornography. Id. The Fourth Circuit affirmed the judgment of this Court, finding “that the jury had sufficient evidence to convict Clifton of violating 18 U.S.C. § 2252(a)(1).” Id. Subsequently, Clifton filed the pending Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 94) and Supplement to Motion to Vacate (ECF No. 97).

         STANDARD OF REVIEW

         In order to state a claim for relief under 28 U.S.C. § 2255 based on a Sixth Amendment claim for ineffective assistance of counsel, Petitioner must prove both elements of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, Petitioner must show that counsel's performance was so deficient as to fall below an “objective standard of reasonableness.” Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts adopt a “strong presumption” that counsel's actions fall within the “wide range of reasonable professional assistance.” Id. at 689. Second, Petitioner must show that counsel's performance was so prejudicial as to “deprive the defendant of a fair trial.” Id. at 687. In order to establish this level of prejudice, Petitioner must demonstrate that there is a “reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Satisfying either of the two parts of the test alone is not sufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See Id. at 687.

         ANALYSIS

         Petitioner Alan J. Clifton (“Petitioner” or “Clifton”) contends that he is entitled to relief under 28 U.S.C. § 2255 because his counsel's ineffective performance violated his Sixth Amendment right. See Motion to Vacate, ECF No. 94. Specifically, Petitioner argues that his trial counsel's failure to call a defense computer expert at trial with knowledge of peer-to- peer forums, to testify as to Petitioner's lack of intent to share files containing child pornography, was not reasonable.[3] Id. Petitioner asserts that calling an expert witness could have created reasonable doubt as to his intent and could have led to acquittal on Count 1. Id.

         I. Performance ...


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