Bishop v. USA

Filing 1

OPINION AND ORDER: The Petition for Relief under 28 U.S.C. 2255 is DISMISSED. The Court DENIES the issuance of a certificate of appealability. Signed by Chief Judge Jon E DeGuilio on 9/7/21. (Copy mailed to pro se party)(jld)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
v.

Case No. 3:19-CR-41 JD

MARVIN L BISHOP II
OPINION AND ORDER
Defendant Marvin Bishop pled guilty to violating 18 U.S.C. § 2251(a), production of
child pornography. In his plea agreement, Mr. Bishop admitted to sending a video he filmed
containing child pornography over the internet to an undercover police officer. [DE 2]. The
Court accepted Mr. Bishop’s plea of guilty, accepted his plea agreement, and found him guilty of
this count on July 3, 2019. [DE 10]. On November 13, 2019, the Court sentenced him to 324
months of imprisonment, at the low end of the advisory guideline range, to be followed by five
years of supervised release. [DE 31, 34]. Mr. Bishop did not appeal.
Now proceeding pro se, Mr. Bishop filed a motion under 28 U.S.C. § 2255, raising three
claims: 1) ineffective assistance of counsel at sentencing, 2) the interviewing officer told him if
he would admit to the crime he would only serve a few years and the officers played “good
cop/bad cop,” and 3) when communicating with the undercover officer the officer denied being a
member of law enforcement and because the depictions were transmitted within state. [DE 42].
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts, “[i]f it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion . . . .” Pursuant to Rule 2(b), a motion under section 2255 must:
(1) specify all the grounds for relief available to the moving party;

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(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the movant or by a person authorized to
sign it for the movant.
Here, it plainly appears from the motion and the record of prior proceedings that Mr. Bishop is
not entitled to relief on his claims, so the Court will dismiss his petition.
To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that
his counsel’s performance was deficient, meaning that it fell below an objective standard of
reasonableness; and (2) that he was prejudiced by the deficiencies in his counsel’s performance,
meaning that there is a reasonable probability that the results of his sentencing hearing would
have been different with effective representation. Strickland v. Washington, 466 U.S. 687
(1984); Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005). Mr. Bishop asserts that he
“raised several questions to [his] lawyer and he didn’t ask the judge nor did he object to evidence
presented on the day of Court.” [DE 42 at 4]. However, he failed to explain how this establishes
his counsel’s performance was deficient nor did he assert how these alleged deficiencies
prejudiced his sentence. Mr. Bishop did not specify what questions he told his counsel to raise
with the Court. He also fails to detail what evidence he believes his counsel should have objected
to during his sentencing hearing and why an objection was warranted. Lastly, he does not
provide any reason why he believes his sentencing would have been different had his counsel
done as he suggests. Therefore, he cannot demonstrate how his counsel’s purported failures here
impacted his sentence. Because of this, Mr. Bishop has failed to demonstrate his counsel’s
performance was deficient nor prejudicial under Strickland.
Mr. Bishop asserts other grounds for relief with little or no explanation. He stated that
“the officer told [him] if [he’d] admit to the crime [he] would only have to serve a few years.
Also, [the] officers play good cop/bad cop with [him].” [DE 42 at 5]. Next, he asserted he was
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“convicted on a charge where what [he] sent stayed in state.” Id. at 7. He goes on to provide
“supporting facts” that “it clearly shows that the photo and video [he] sent to the officer was in
state” and he “had also asked the officer if he was [an] officer and he said no.” Id. However, Mr.
Bishop’s claims are procedurally defaulted for two reasons. First, Mr. Bishop did not appeal his
conviction or sentencing and therefore cannot raise these claims for the first time in this petition.
McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016) (“A claim cannot be raised for the
first time in a § 2255 motion if it could have been raised at trial or on direct appeal.”). In order to
raise these claims under § 2255, Mr. Bishop would have to show cause and prejudice for the
default. Id. “[A] showing that the factual or legal basis for a claim was not reasonably available
to counsel . . . would constitute cause” for excusing procedural default. Conley v. United States,
5 F.4th 781, 799 (7th Cir. 2021) (quoting Murray v. Carrier, 477 U.S. 478, 488(1986). While
there is no procedural default for failing to raise an ineffective assistance claim on direct appeal,
the Court has already found that Mr. Bishop has not established grounds for such a claim. See
Massaro v. United States, 538 U.S. 500, 509 (2003). Absent both cause and prejudice,
procedural default will only be excused if the defendant can demonstrate he is “actually
innocent” of the offenses to which he was convicted. Id. However, Mr. Bishop has presented no
grounds that might show cause for his default nor has he shown prejudice. Nor has Mr. Bishop
made any claim in his motion that he is actually innocent of the offense of conviction to which
he pled guilty. As to his third claim, in his plea agreement Mr. Bishop acknowledged that his use
of the internet to send the video was a means or facility of interstate or foreign commerce. [DE 2
at 4].

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Second, Mr. Bishop’s petition, except as to the claim of ineffective assistance, is barred
by the waiver of post-conviction proceedings in his plea agreement, which contained the
following provision, in part:
With this understand and in consideration of the government’s entry into this
plea agreement, I expressly waive my right to appeal or to contest my
conviction and all components of my sentence or the manner in which my
conviction or my sentence was determined or imposed, to any Court on any
ground other than a claim of ineffective assistance of counsel, including any
appeal under Title 18 United States Code, Section 3742 or any post-conviction
proceeding, including but not limited to, a proceeding under Title 28, United
States Code, Section 2255.
[DE 2 at 4–5] (emphasis in original). The terms of this provision plainly encompass much of the
present motion, in which Mr. Bishop seeks to contest his sentence in a post-conviction
proceeding under § 2255. In the Seventh Circuit, plea agreements that contain waivers of
collateral review are generally enforceable. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999) (“[W]aivers are enforceable as a general rule; the right to mount a collateral attack
pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the
negotiation of the waiver.”); see also United States v. Worthen, 842 F.3d 552, 554 (7th Cir.
2016) (“Generally speaking, appeal waivers are enforceable and preclude appellate
review.”). Mr. Bishop has not contested the negotiations of this waiver and therefore, the claims
challenging the grounds for his conviction and sentence, except again as to ineffective assistance
of counsel, have been waived and are barred by the waiver.
Lastly, Section 2255 contains a one-year statute of limitations that runs from any of
several different dates. 28 U.S.C. § 2255(f). The first of those is “the date on which the judgment
of conviction becomes final.” Id. § 2255(f)(1). Judgment was entered on Mr. Bishop’s
convictions on November 14, 2019, 1 and his convictions became final fourteen days later when
1

The judgment was amended on December 17, 2019 to change the recipient of the restitution payments. [DE 37].

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the deadline to appeal passed without action. [DE 34]. Thus, Mr. Bishop had until November 16,
2020 to file his motion under this deadline, but he did not do so until July 4, 2021, making his
motion about eight months too late. Mr. Bishop asserts the untimeliness of his petition was due
to the “COVID-19 shut down” and his “lawyer not informing” him. The Court can equitably toll
a petitioner’s statute of limitations if a petitioner shows “(1) that he has been pursuing his rights
diligently; and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Lombardo v. United States, 860 F.3d 547, 551 (7th Cir. 2017) (citing Holland v. Florida,
560 U.S. 631, 649 (2010)). “The threshold necessary to trigger equitable tolling is very high, lest
the exceptions swallow the rule.” Id. Here, however, Mr. Bishop has not shown that the COVID19 pandemic and the restricted access to legal materials prevented him from timely filing his
motion. COVID-19 lockdowns and related restrictions did not begin until March 2020. By this
time, Mr. Bishop was well aware of all the facts surrounding the claims he set forth in his
motion. Further, he has not provided any information regarding how his counsel failed to
“inform him” or how he diligently pursued his rights. Therefore, the Court does not find that
equitable tolling is warranted here. See Turner v. United States, 2021 WL 796135, at *3 (C.D.
Ill. Mar. 2, 2021). However, while the Court finds Mr. Bishop’s motion untimely, even if it were
timely, the Court would still dismiss the motion as explained above.
For these reasons, the Court finds that it plainly appears that Mr. Bishop is not entitled to
relief under 28 U.S.C. § 2255, so the Court DISMISSES his motion [DE 42] and directs the
Clerk to enter judgment accordingly. For the same reasons, the Court DENIES the issuance of a
certificate of appealability, as the claim is not sufficient to deserve encouragement to proceed
further and its resolution is not debatable. The Court advises Mr. Bishop that pursuant to Rule
22(b) of the Federal Rules of Appellate Procedure, when the district judge denies a certificate of

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appealability, the applicant may request a circuit judge to issue the certificate. The Court further
advises Mr. Bishop that any notice of appeal must be filed within 60 days after judgment is
entered on this motion. Fed. R. App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir.
2006) (stating that “the time to contest the erroneous denial of [the defendant’s] first § 2255
motion was within 60 days of the decision”).
SO ORDERED.
ENTERED: September 7, 2021
/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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