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Bishop v. United States

United States District Court, N.D. Indiana, South Bend Division

July 31, 2019

EDWARD BISHOP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          Robert L. Miller, Jr., United States District Court Judge

         Edward Bishop was found guilty at trial of discharging a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c). The court sentenced Mr. Bishop to a term of 120 months' imprisonment and two years' supervised release. The judgment was affirmed on appeal. Mr. Bishop is now before the court with several requests: 1) that the court vacate his conviction and sentence under 28 U.S.C. § 2255. [Doc. No. 141]; 2) that the court allow for certain document production regarding the collateral attack on his sentence and conviction [Doc. No. 139]; 3) that the court allow for other certain discovery regarding his collateral attack [Doc. No. 144]; 4) that the court return certain seized property [Doc. No. 137]; 5) that the court release Mr. Bishop from custody with a recognizance bond [Doc. No. 147]; and 6) that the court grant him summary judgment on all his pending requests [Doc. No. 150]. For the following reasons, the court denies Mr. Bishop's motions.

         I. Background

         On May 13, 2017 Edward Bishop sold drugs at a Walmart parking lot in Warsaw, Indiana. The transaction occurred in Mr. Bishop's car. The buyer's car was nearby and was driven by the buyer's girlfriend. During the transaction things went wrong and the buyer quickly left Mr. Bishop's car. The buyer began running towards his own vehicle while Mr. Bishop exited his car and fired two shots at the fleeing buyer. Mr. Bishop's shots missed the buyer and at least one shot struck the buyer's girlfriend as she drove away. These events were recorded on the Walmart security video system.

         That same evening police obtained a warrant and searched Mr. Bishop's car. The police found marijuana, Ecstasy, a digital scale, a handgun and loaded magazines. Police also recovered information from the buyers' cell phones, as well as information from Mr. Bishop's phone. A picture on Mr. Bishop's phone showed him posing with the recovered handgun. The handgun matched the gun depicted in the Walmart security footage.

         On appeal of his conviction, Mr. Bishop only challenged the search warrant that allowed investigators to access the information on his cell phone. The court of appeals rejected Mr. Bishop's argument and affirmed the district court's judgment. United States v. Bishop, 910 F.3d 335 (7th Cir. 2018).

         II. Discussion

         Mr. Bishop has a number of pending motions before the court. Each will be addressed in turn.

         A. Motion to Vacate

         Mr. Bishop presents several arguments attacking his sentence and conviction in his 28 U.S.C. § 2255 petition: 1) that his trial counsel failed to file a motion dismissing the alleged defective indictment against him; 2) that appellate counsel failed to appeal the alleged defective indictment; 3) that he is factually innocent because he can't be charged under 18 U.S.C. § 924(c) without also being charged with a predicate drug offense; 4) that the district court constructively amended his indictment when certain jury instructions were tendered to the jury; and 5) that there was insufficient evidence to convict him of the 18 U.S.C. § 924(c) offense. The rules governing petitions filed under 28 U.S.C. § 2255 provide that once a motion is filed:

The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Mr. Bishop's petition can be resolved without a hearing. See Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir. 1995).

         i. Ineffective Assistance and Factual Innocence

         Mr. Bishop first argues that the court should vacate his conviction because it was due, in part, to the failure of trial and appellate counsel to challenge the indictment charging him for violating 18 U.S.C. § 924(c). Mr. Bishop argues the indictment was deficient because he is factually innocent of violating 18 U.S.C. § 924(c). Specifically, Mr. Bishop argues that 18 U.S.C. § 924(c) requires a conviction of a predicate offense - that in order to be found guilty of discharging a firearm during a drug trafficking crime one must also be convicted of a drug trafficking crime itself. Because Mr. Bishop didn't challenge the indictment before trial, ...


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