United States District Court, D. Maryland
ALAN J. CLIFTON, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. RDB-12-0389
Richard D. Bennett United States District Judge
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.
He contends that his counsel's ineffective performance
violated his Sixth Amendment Rights.
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.
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.
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.
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,
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
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.
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).
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.
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. 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.