FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-08-1150]
HONORABLE BRADLEY LEWIS KARREN, JUDGE
Douglas Bishop, pro se appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
W. GRUBER, Chief Judge.
Douglas Bishop appeals the Benton County Circuit Court's
order denying his petition for postconviction relief under
Arkansas Rule of Criminal Procedure Rule 37.1. In a previous
decision, we addressed his direct appeal and affirmed his
convictions on thirty counts of distributing, possessing, or
viewing matter depicting sexually explicit conduct involving
a child. Bishop v. State, 2015 Ark.App. 436, 467
S.W.3d 763. Bishop then filed in the trial court a petition
for postconviction relief; after conducting a hearing, the
trial court denied the petition. Bishop then appealed the
trial court's denial of his petition for postconviction
relief, and we ordered rebriefing for failure to comply with
Arkansas Supreme Court Rule 4-7(c) (2016)-the rule in effect
at the time governing pro se briefs filed by incarcerated
persons in appeals of postconviction-relief proceedings.
Bishop v. State, 2017 Ark.App. 246, at 2. Our
supreme court subsequently amended Rule 4-7, striking
requirements of the 2016 rule that were the bases for our
order for rebriefing. See Ark. Sup. Ct. R. 4-7(a)
& (c) (2017). In Bishop v. State, 2017 Ark.App.
366, at 2 (per curiam), we found that our order for
rebriefing was no longer necessary because of the change in
Rule 4-7, and we ordered the clerk of our court to restore
the case on the calendar. The case has now been restored, and
we address Bishop's appeal of the denial of his petition
for postconviction relief.
first argument is that the appeal record for this matter is
incomplete. His second, third, and fourth arguments are that
the trial court erred in determining that probable cause
existed to search his residence, that a valid search warrant
existed for forensic analysis of seized equipment, and that
he was not prejudiced "by the lack of meta data of
alleged chat transcripts entered into evidence." His
final argument is that the trial court erred in concluding
that he could be charged with multiple counts under Ark. Code
Ann. § 5-27-602. We affirm.
review, we assess the effectiveness of counsel under the
two-prong standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), whereby a petitioner
must demonstrate that counsel made errors so serious that it
prejudiced the outcome of the trial. Sartin v.
State, 2012 Ark. 155, at 2-3, 400 S.W.3d 694, 697-98.
The reviewing court indulges in a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Id. The
defendant claiming ineffective assistance of counsel has the
burden of overcoming this presumption by identifying the acts
and omissions of counsel which, when viewed from
counsel's perspective at the time of trial, could not
have been the result of reasonable professional judgment.
Id. To satisfy the prejudice part of the test, the
petitioner must show that counsel's deficient performance
prejudiced the defense, such that there is a reasonable
probability that the trial's outcome would have been
different absent counsel's errors. Id. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial.
filed a timely petition for postconviction relief, claiming
that his trial counsel was ineffective for failing to (1)
file a motion to suppress evidence seized during execution of
a search warrant on his residence; (2) call witnesses to show
that other people had access to his computer; (3) object to
the State's mentioning the 5000 images depicting sexually
explicit conduct involving a child found on his computer,
even though he was charged with only 30 counts; (4) object to
the State's charging him with 30 counts instead of a
single count under Ark. Code Ann. § 5-27-602(a)(2)
(Repl. 2013); and (5) file a motion to dismiss on
speedy-trial grounds. Simultaneously with the filing of his
original petition, he filed a motion for leave to file an
amended petition. He later filed a second motion to file an
amended petition, which the trial court granted. With the
second motion, he filed an amended petition containing the
additional claims that his counsel was ineffective for
failing to (1) file a motion to suppress the evidence
discovered on his computer pursuant to a search warrant, (2)
consolidate the charges against him, (3) subpoena his work
records to show that he could not have committed the charged
offenses, and (4) introduce metadata of the chat transcripts.
written order, the trial court applied the two-prong standard
of Strickland v. Washington, supra, and
concluded that Bishop failed to prove either prong. The court
ruled that (1) an independent magistrate found that there was
sufficient probable cause to support both search warrants,
and trial counsel concluded there was sufficient probable
cause and that there was no legal basis to challenge it; (2)
trial counsel did not call any witnesses on behalf of Bishop
because he told counsel that he did not want any witnesses
called; (3) it was proper for the State to mention uncharged
counts of child pornography under Ark. R. Evid. 404(b) to
show absence of mistake or accident; (4) under Ark. Code Ann.
§ 5-27-602(a)(2) (Repl. 2013), it was appropriate and
permitted for the State to charge Bishop with 30 counts of
distributing, possessing, or viewing matter depicting
sexually explicit conduct involving a child; (5) Bishop
failed to prove that the time for a speedy trial had expired
or that he was prejudiced by speedy-trial time being charged
to him or being excluded, and much of the delay was caused by
Bishop's asking for continuances; (6) trial counsel's
decision not to join Bishop's two separate cases was
trial strategy, and Bishop failed to show prejudice; (7)
because he confessed and because-as found by the lower court
and the appellate court-he was in exclusive control of the
computer, he was not prejudiced by his work records' not
being introduced at trial; and (8) he "was not
prejudiced by any meta data of chatroom transcripts allegedly
not entered into evidence."
Bishop's Claim that the Appeal Record Was
trial record was admitted at the Rule 37 hearing as a
self-authenticating document. Bishop claims on appeal that he
should have access to "at least the challenged portions
of this document, " particularly the search warrants for
his residence and for forensic analysis,  and the chat log
appeal from an order denying postconviction relief is the
review of the decision made by the trial court based on the
petition before it." Carter v. State, 2015 Ark.
166, at 8, 460 S.W.3d 781, 789. An appellant in a Rule 37.1
proceeding is therefore limited to the scope and nature of
his arguments below, and he cannot add new arguments on
order for an issue that was not raised at trial or on direct
appeal to provide a basis for Rule 37 relief, the error
alleged must be so fundamental as to render the judgment of
conviction void and subject to collateral attack."
State v. Rainer, 2014 Ark. 306, at 15, 440 S.W.3d
315, 324. No such exception exists here. Bishop did not
allege at trial, on direct appeal, or in his Rule 37 petition
that the trial record was incomplete; nor did he file a Cite
as 2017 Ark.App. 435 motion for access to a complete trial
record. Thus, his claim is not cognizable as a Rule 37 claim.
Bishop's Claim that the Trial Court Erred in
Determining that Probable Cause ...