Clem v. USA - 2255

Filing 2

MEMORANDUM AND ORDER DENYING 111 Motion to Vacate (2255) as to Howard James Clem IV (2). Signed by Judge Marvin J. Garbis on 9/20/2017. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA

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vs.

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HOWARD JAMES CLEM, IV
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CRIMINAL NO. MJG-14-0405

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MEMORANDUM AND ORDER
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).”
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“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
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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.
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Thus overcoming a presumption that counsel's conduct (i.e.,
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
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These contentions shall be addressed in turn.
1.

State Plea Agreement

Petitioner was originally charged by the State of Maryland
with two counts of using a computer for the purpose of
facilitating sadomasochistic abuse or sexual conduct of a minor
under § 11-207(a)(5) of the Maryland Criminal Code.

The State

of Maryland offered the Defendant a plea deal, whereby he could
plead guilty to one count and then serve three months at a
detention center followed by three months on house arrest.

See

Pet’r Mot. to Vacate, Set Aside, or Correct Sentence at 4, ECF
No. 111.

The state plea agreement would have also resulted in

suspended time, supervised probation (with various conditions),
sex offender evaluation and treatment, and the potential for
probation before judgment after five years of probation.
Opp. to Pet’r Mot. at 3, ECF No. 118.

Gov.

Petitioner was advised

fully of the potential agreement and warned that if it was
turned down, he would be prosecuted in federal court and face a
potentially greater sentence with a mandatory minimum sentence
of five years.
offer.

Trial Counsel advised Petitioner to reject the

He did so and was charged in the instant federal case

that resulted in his receiving a nine-year sentence.

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The Court does not find Trial Counsel’s advice to reject
the state plea agreement to have denied Petitioner effective
legal assistance.

Petitioner had available a plausible defense

theory based upon his own testimony that could have been
accepted by a reasonable jury and could have resulted in his
acquittal.

While the defense position was ultimately not

accepted by the federal jury, Petitioner knew of this
possibility when he decided to reject agreeing to the state plea
deal and chose to take the risk of a federal trial that could
have, and did, result in his federal conviction and sentence.
Petitioner asserts that Trial Counsel did not adequately
explain to him the possession, receipt, and distribution aspects
of the federal charges he faced.

He does not establish that any

such explanation would have changed his resolution not to plead
guilty to any charge.
In a Lafler/Frye2 hearing before Magistrate Judge Coulson,
Petitioner confirmed his rejection of a federal offer of a plea
agreement, his continuing denial of guilt, and his determination
to proceed to trial on the charges against him.
The Court finds that Petitioner made a rational and
informed choice to take the risk of rejection of his defense
An ex parte proceeding regarding Petitioner’s rejection of a
plea offer. Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v.
Frye, 566 U.S. 134 (2012).
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theory rather than plead guilty to the charges against him.

The

Court does not find Trial Counsel’s advice to proceed to trial
an inadequate strategic decision even though – as it happened Petitioner was not believed by the jury, and the risk of
conviction at trial became a reality.

2.

The Four Federal Charges

Petitioner has not suggested any potentially valid
objection that Trial Counsel could have made to the inclusion of
the four Counts in the Indictment.

In the Lafler/Frye hearing

in which Petitioner confirmed his desire to proceed to federal
trial, it was clearly confirmed that there were four federal
charges Petitioner faced.

Moreover, the trial Court imposed a

concurrent sentence on all Counts so that the sentence received
was the same as would have been imposed had there been only one
Count of conviction.

3.

Pretrial Motions

Petitioner does not suggest any potentially meritorious
pretrial motion that Trial Counsel could have, and should have,
made that could have avoided his conviction.

4.

Pretrial Research
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It is true that Trial Counsel was conducting his first
federal trial.

However, a lack of experience does not justify a

finding or create a presumption of incompetence.

“Every

experienced criminal defense attorney once tried his first
criminal case.”

United States v. Cronic, 466 U.S. 648, 665

(1984).
The Court finds that Trial Counsel adequately presented
Petitioner’s defense for consideration by the jury.

Moreover,

Petitioner has not identified any particular research subject
that he claims Trial Counsel should have explored that would
have made any difference in the trial result.

The jury’s

rejection of the defense theory was based upon its rejection of
the Petitioner’s credibility and not any rejection of Trial
Counsel or his skill in presenting the case.

B. Trial Proceedings
Petitioner asserts that his Trial Counsel failed to provide
effective assistance in the course of trial by:

1. Failing to argue about the size of the pictures
shown to the jury,
2. Failing to argue about the co-defendant’s
daughter’s age,
3. Failing to argue that Petitioner made no attempt
to meet the co-defendant or her daughter,
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4. Failing to properly question Detective Williams,
5. Failing to object to the introduction of certain
photos in evidence,
6. Failing to object to the Government allegation
that Petitioner did not disclose and return
seized evidence,
7. Failing to introduce a timeline of communications
between Petitioner and co-defendant,
8. Failing to object to testimony of co-defendant
while not properly medicated,
9. Failing to object to retaining a juror who slept
during trial, and
10.
Failing to properly argue about the
conspiracy and certain photographic evidence.
These contentions shall be addressed in turn.

1.

Size of Pictures

The essence of the defense was based upon Petitioner’s
testimony that he did not know that the photographs co-defendant
sent to him constituted child pornography.

Trial Counsel was

able to provide an adequate demonstration to enable the jury to
appreciate Petitioner’s experience when receiving the
photographs.

That is, Trial Counsel was able to demonstrate to

the jury Petitioner’s contention that the receipt of blurred
small images that he received did not reveal they were child
pornography.

According to Petitioner, he did not click upon the
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photographs to obtain clarity.

While Petitioner was not

provided the opportunity to use the charged child pornographic
photos in his demonstration, pursuant to 18 U.S.C. § 3509(m) he
was not entitled to do so.
The Court finds that had Petitioner been allowed to
reproduce the child pornography at issue for his trial
demonstration, he would not have succeeded in changing the trial
result.

2.

Co-defendant’s daughter’s age

Trial Counsel chose not to ask witnesses about the actual
age of the co-defendant’s daughter with whom Petitioner
allegedly had a sexual interest.

The age of this girl, referred

to on the record as being young, was not relevant to the
charges.

None of the charged child pornography included a

picture of her.

And, Petitioner does not suggest how Trial

Counsel’s asking about the age of the girl or commenting upon it
would be likely to have resulted in an acquittal.

3.

Efforts to Meet Co-defendant or daughter

Petitioner claims that Trial Counsel should have argued
that he made no attempt to meet co-defendant’s daughter.
Petitioner has not shown that such an argument would have been
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successful in light of the evidence of Petitioner’s frequent
communications with the co-defendant as well as testimony of the
co-defendant that refuted Petitioner’s denial of a sexual
relationship.

4.

Detective Williams

Petitioner contends that Trial Counsel erred in questioning
Detective Williams about the absence of evidence of childpornography related conversations Petitioner had with persons
other than the co-defendant.

This questioning opened the door

to allow the Government to introduce Fed. R. Evid. Rule 404(b)
evidence about other conversations Petitioner had on the
internet.

If the question was a tactical error,3

Petitioner has

not shown that the significance of the Rule 404(b) evidence was
sufficient to support the conclusion that its omission would
have resulted in his acquittal rather than his conviction.

5. Certain Uncharged Photographic Evidence
Petitioner complains that Trial Counsel did not object to
the admission of certain photographs that were not charged
items.

These photographs, all of which had been sent to

Trial Counsel may well have considered the value of the
testimony obtained to be greater than such downside, if any, as
may have resulted from the Rule 404(b) evidence it enabled.
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Petitioner by his co-defendant, were not child pornography
although some were sexual in nature.

It is by no means clear

that an objection to these photographs would have been sustained
inasmuch as the sexual photographs supported the Government
theory of the type of relationship Petitioner was seeking with
the co-defendant.

Moreover, Petitioner has not shown the

significance, if any, of these photographs in regard to the jury
verdict.

6.

Disclosure and Return of Evidence

Petitioner contends that Trial Counsel failed to object to
the Government’s allegation that he had failed to disclose and
return all items originally seized by the State and County.
This appears to be a complaint about the testimony of F.B.I.
Agent Corn that Petitioner asserts was perjurious.

It appears

that Trial Counsel’s performance was reasonable in regard to a
mix-up over the Government’s not obtaining certain evidence from
Petitioner.

Petitioner has not presented the allegation clearly

and, most certainly, has not shown that Special Agent Corn
committed perjury or that the entire matter was significant in
the context of the trial and verdict of guilt.

7. Timeline
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Petitioner asserts that Trial Counsel incompetently failed
to introduce a timeline of communications between himself and
his co-defendant.

This argument, repackaged from his appeal, is

of little or no moment.
As stated in the Appellate Decision:
The disputed records showing telephone
conversations between Clem and his
coconspirator, which corroborated the
coconspirator's testimony, are not favorable
to Clem. The records were turned over when
received and, thus, were not suppressed.
Finally, whether or not Clem and his
coconspirator spoke on the phone was not
material to Clem's defense that his
relationship with his coconspirator was
strictly role playing and that he did not
want his coconspirator to send him child
pornography.
United States v. Clem, 644 F. App'x 238, 241 (4th Cir.
2016), cert. denied, 136 S. Ct. 2524 (2016).
Petitioner has not shown that the introduction of a
conversational timeline would have been favorable to him, much
less that it would have made an acquittal a reasonable
probability.

8.

Co-defendant’s Medication

Petitioner contends that Trial Counsel failed to object to
the testimony of the co-defendant had not been properly
medicated prior to her trial testimony.
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Petitioner does not

suggest what objection would have been successful since the codefendant testified that she felt good and understood what was
being asked of her.
problem.

The jury was aware of her medication

She was not shown to have been unable to testify.

Moreover, Petitioner does not suggest how her testimony would
have been less harmful to him had it been deferred until after
she received any medication.

9.

Sleeping Juror

Petitioner complains that Trial Counsel did not seek to have
the judge discharge a juror who fell asleep during trial.

The

Court does not find the tactical decision of Trial Counsel in
this regard to constitute a denial of the effective assistance
of counsel.

Trial Counsel had to make a judgment as to whether,

in deliberations, the juror in question would be more or less
favorable to the defendant than the replacement would have been.
Petitioner has presented no basis for the Court to conclude that
Trial Counsel’s decision was erroneous and certainly has not
shown that the substitution of an alternate juror would probably
have titled the jury verdict in favor of Petitioner.

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10.

Conspiracy Argument

Petitioner contends that Trial Counsel should have based
some argument on the fact that the charged child pornography was
not of co-defendant’s daughter and had been created in North
Carolina by persons having nothing to do with the Petitioner or
the co-defendant.

However, the absence of a relation of

Petitioner to the children in the pornography is irrelevant to
the charges faced.

The charged photographs were proven to be

child pornography and the specific identity of the children is
immaterial.

Petitioner has not suggested any potentially

successful argument that Trial Counsel could have made that he
failed to make.

C.

Appellate Proceedings
Petitioner asserts that his Trial Counsel failed to provide

effective assistance in the course of trial by failing to timely
supply appellate counsel with evidence.
Petitioner has not presented any reason to find that any
harm was caused by the timing of Trial Counsel’s presentation of
evidence to appellate counsel.

Certainly, there is no basis to

find that the Fourth Circuit would have reached a different
result had Trial Counsel been timelier.

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VI.

CONCLUSION
For the foregoing reasons, Petitioner's Motion to Vacate,

Set Aside, or Correct Sentence [ECF No. 111] is DENIED.

SO ORDERED, this Wednesday, September 20, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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