United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr., United States District Court Judge
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.
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.
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
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).
Bishop has a number of pending motions before the court. Each
will be addressed in turn.
Motion to Vacate
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.
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).
Ineffective Assistance and Factual Innocence
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, ...