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