Bishop v. State
2017 Ark. App. 435
| Ark. Ct. App. | 2017Background
- Max Douglas Bishop was convicted on 30 counts of distributing, possessing, or viewing child-pornography-related material; convictions were affirmed on direct appeal.
- Bishop filed a timely Rule 37.1 petition alleging ineffective assistance of trial counsel on multiple grounds (failure to suppress, failure to call witnesses, failure to object to use of uncharged images, filing multiple counts, speedy-trial issues, failure to introduce metadata).
- The trial court held an evidentiary hearing, admitted the trial record as a self-authenticating exhibit, and denied relief after applying the Strickland two-prong test.
- The court found counsel’s decisions were either reasonable trial strategy or waived by Bishop (e.g., Bishop told counsel not to call witnesses), and that Bishop failed to show prejudice for the alleged deficiencies.
- Many of Bishop’s complaints challenged trial errors or issues not raised on direct appeal (incomplete record, validity of search warrants, metadata of chat transcripts, multiplicity of charges), so the court treated them as noncognizable in a Rule 37.1 proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Record completeness | Bishop: appeal record missing challenged portions (search warrants, chat metadata) | State: petitioner limited to issues raised below; no motion for access filed | Noncognizable; Bishop didn’t raise at trial/direct appeal and cannot add new claims in Rule 37.1 |
| Probable cause for residence search | Bishop: insufficient probable cause; counsel ineffective for not moving to suppress | State: magistrate found probable cause; counsel reviewed warrants and saw no basis to challenge | Noncognizable; trial error not raised earlier and no fundamental-error showing |
| Validity of warrant for forensic analysis | Bishop: second search warrant never proven to exist; no valid warrant for forensic analysis | State: warrants reviewed by counsel pretrial; petitioner failed to challenge at trial/direct appeal | Noncognizable; cannot raise for first time in Rule 37.1 |
| Metadata of chat transcripts | Bishop: counsel failed to introduce metadata, preventing authenticity challenge; timestamps suspicious | State: chat transcripts not determinative; errors could have been raised on direct appeal; system actions can alter timestamps | Noncognizable; failure to raise on direct appeal; court found no prejudice |
| Multiplicity of charges under Ark. Code Ann. § 5-27-602 | Bishop: statute authorizes only a single Class C felony for first offense; counsel ineffective for not objecting | State: charging multiple counts was permissible; issue not raised at trial/direct appeal | Noncognizable; Rule 37.1 is not proper vehicle for direct attack on multiple charges |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance-of-counsel test)
- Carter v. State, 2015 Ark. 166 (Rule 37 review limited to claims presented to trial court)
- Rainer v. State, 2014 Ark. 306 (errors not raised earlier must be fundamental to be raised in Rule 37)
- Savage v. State, 2015 Ark. 212 (trial errors generally cannot be raised first in Rule 37)
- Flemons v. State, 2016 Ark. 460 (same; Rule 37 not for first-time trial error claims)
- Davis v. State, 2013 Ark. 118 (trial errors that could have been raised on direct appeal are not cognizable in Rule 37)
- Ward v. State, 2015 Ark. 325 (Rule 37.1 is not the appropriate vehicle for direct attack on conviction)
- Pigg v. State, 2016 Ark. 108 (appellate courts may decline issues raised first in a reply brief)