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Bishop v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

February 20, 2019

MAX D. BISHOP ADC #158156 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (Recommendation) has been sent to Judge D.P. Marshall Jr. Either party to this lawsuit may file written objections with the Clerk of Court. To be considered, objections must be filed within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If parties do not file objections, they risk waiving the right to appeal questions of fact. And, if no objections are filed, Judge Marshall can adopt this Recommendation without independently reviewing the record.

         II. Background:

         A Benton County jury convicted petitioner Max D. Bishop of thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. Bishop v. State, 2015 Ark.App. 436, at 1. On each count, Mr. Bishop was sentenced to 48 months in the Arkansas Department of Correction, with counts 1-15 to run consecutively, for a total of 720 months' imprisonment. Counts 16-30 were set to run concurrently with counts 1-15. Id.

         Mr. Bishop filed a direct appeal challenging the sufficiency of the evidence to support the conviction. Id. On September 2, 2015, the Arkansas Court of Appeals affirmed the judgment. Id.

         On November 20, 2015, Mr. Bishop filed a petition for post-conviction relief with the Benton County Circuit Court under Arkansas Rule of Criminal Procedure 37.1 and an amended petition on May 18, 2016. (#12-3, #12-4) After conducting a hearing, the trial court denied the petition. (#12-5) Bishop v. State, 2017 Ark.App. 435, at 1. Mr. Bishop appealed, and on September 13, 2017, the Arkansas Court of Appeals affirmed the trial court. Id. at 2. The Court of Appeals denied a petition for rehearing and issued its mandate on October 25, 2017. (#12-8, #12-9) Id.

         III. Petitioner's Claims:

         On October 18, 2018, Mr. Bishop mailed a petition for writ of habeas corpus to this Court claiming ineffective assistance based on: the trial counsel's failure to investigate research performed by forensic experts; the trial counsel's failure to move to suppress the fruits of the search of his residence and seized electronic devices; the trial and appellate counsel's failure to investigate the proper unit of prosecution causing Mr. Bishop to be charged with multiple offenses in violation of the Fifth Amendment; and the trial counsel's failure to object to the prosecution's playing a “highly edited and prejudicial” audio recording of his interview with police. (#2 at 4-8) Additionally, Mr. Bishop claims that he was “constructively denied effective assistance of counsel, ” because no one would have been able to effectively represent him “under the given circumstances.” (#2 at 8)

         Director Kelley responded to the petition with a motion to dismiss, asserting that Mr. Bishop's claims are barred by the applicable statute of limitations. (#11) Mr. Bishop has responded to the motion, and the case is ripe for decision. (#15, #16)

         IV. Statute of Limitations:

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). For most habeas cases, the limitations period begins to run from the later of, “the date on which the judgement became final by the conclusion of direct review or the expiration of the time limit for seeking such review.” Id.

         The Arkansas Court of Appeals decided Mr. Bishop's direct appeal on September 2, 2015, and his time to seek review in the Arkansas Supreme Court expired eighteen days later, on September 21, 2015. Ark. Sup. Ct. R. 2-4(a); Ark. R. App. P. -Crim. 17. Mr. Bishop did not seek Arkansas Supreme Court review. Thus, the one-year federal statute of limitations began to run for Mr. Bishop on September 22, 2015, the day after the time expired for seeking review of Court of Appeals's decision. See Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (the judgment becomes “final” on the date that the time for seeking review expires).

         Mr. Bishop did not file the current habeas petition until October 2018, over two years after the statute of limitations had expired. Accordingly, his claims are ...


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