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United States v. Clem

United States District Court, D. Maryland

September 20, 2017

UNITED STATES OF AMERICA
v.
HOWARD JAMES CLEM, IV

          MEMORANDUM AND ORDER

          Marvin J. Garbis United States District Judge.

         The 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.

         I. BACKGROUND

         In this 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 with:

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); and
8. Possession of Child Pornography, 18 U.S.C. § 2252A(a)(5)(B).

         Petitioner 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.

         On May 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.

         As 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 knowing.”

United States v. Clem, 644 F.App'x 238, 239 (4th Cir. 2016), cert. denied, 136 S.Ct. 2524 (2016) (“Appellate Decision”).

         By the instant Motion, timely filed pursuant to 28 U.S.C. § 2255, Petitioner seeks to have his conviction and sentence vacated.

         II. GROUNDS ASSERTED

         Petitioner 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.

         In 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, "[1] 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.

         As 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.

         A. Pre-Trial Proceedings

         Petitioner 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.

         These contentions shall be ...


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