United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. Garbis United States District Judge.
Court has before it Petitioner's pro se Motion
to Vacate, Set Aside, or Correct Sentence [ECF No. 111]. The
Court finds that a hearing is unnecessary.
case, the Government charged that Petitioner Howard James
Clem IV and co-defendant Erin Elizabeth Mali had a
relationship from June 2012 until June 2013 that included
sexual relations and the receipt by Petitioner of child
pornography from Ms. Mali. He was charged in four Counts
1. Conspiracy to Distribute and Receive Child Pornography, 18
U.S.C. § 2252(a)(2);
3. Receipt of Child Pornography, 18 U.S.C. § 2252(a)(2);
5. Receipt of Child Pornography, 18 U.S.C. § 2252(a)(2);
8. Possession of Child Pornography, 18 U.S.C. §
rejected offered plea agreements and denied that he knowingly
received any child pornography. Petitioner contended - based
upon his own testimony supported by a demonstration - that
the transmissions of photographs to him were too small and
blurry to be understood as child pornography and denied
having sexual relations with the co-defendant. At trial, the
jury rejected Petitioner's defense and on January 30,
2015, convicted him on all charges.
27, 2015, the Court imposed a concurrent sentence of 108
months of incarceration on each Count for a total of 108
months of incarceration followed by supervised release for
life. See Judgment [ECF No. 82]. Petitioner's
conviction and sentence were affirmed on appeal.
stated by the appellate court,
“the only element that Clem contests on appeal is
whether or not he knew that the charged depictions involved a
minor engaging in sexually explicit conduct. Clem asserts
that he received blurry, postage-stamp sized images on his
phone and that there is no evidence that he ever opened the
pictures. Because 18 U.S.C. §§ 2252(a), 2252A
(2012) do not criminalize inadvertent receipt or possession
of illicit materials, the Government must present proof of at
least circumstantial evidence of the requisite knowledge.
See United States v. Ramos, 685 F.3d 120, 130-31 (2d
Cir. 2012) (collecting cases).”
“Here, the Government produced evidence that Clem
repeatedly commented on the images of child pornography that
were sent to him and that he requested sexually explicit
images of a specific child on numerous occasions. While Clem
testified that he only guessed at the content of the images,
the jury rejected his testimony. Witness credibility is
within the sole province of the jury, and we will not
reassess the credibility of testimony. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We find that
the circumstantial evidence presented by the Government was
more than sufficient to show that Clem opened the files at
issue and, thus, that his violation of the statute was
United States v. Clem, 644 F.App'x 238, 239 (4th
Cir. 2016), cert. denied, 136 S.Ct. 2524 (2016)
instant Motion, timely filed pursuant to 28 U.S.C. §
2255, Petitioner seeks to have his conviction and sentence
presents an array of contentions to support his claim that he
did not receive the effective assistance of counsel from his
trial attorney (“Trial Counsel”) in pre-trial
proceedings, at trial in re-trial proceedings, at trial and
in regard to his appellate proceedings.
order to prevail on a claim that counsel's representation
violated his Sixth Amendment right to effective assistance of
counsel, Petitioner must show (1) "that counsel's
representation fell below an objective standard of
reasonableness, " and (2) "that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome
[of the proceedings]." Id. at 694.
discussed herein, the Court finds that Petitioner has not
established a denial of the effective assistance of counsel
warranting a vacation of his conviction and sentence.
asserts that his Trial Counsel failed to provide effective
assistance in the course of pretrial proceedings by:
1. Advising Petitioner to reject a plea agreement offered in
a related state prosecution
2. Failing to question why there were four federal charges
3. Failing to file pretrial motions, and
4. Failing to research federal trial procedures.
contentions shall be ...