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ARKANSAS COURT OF APPEALS
DIVISION I
No.CR-16-1057
MAX DOUGLAS BISHOP Opinion Delivered: September 13, 2017
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-08-1150]
STATE OF ARKANSAS
APPELLEE
HONORABLE BRADLEY LEWIS
KARREN, JUDGE
AFFIRMED
RITA W. GRUBER, Chief Judge
Max Douglas Bishop appeals the Benton County Circuit Court’s order denying his
petition for postconviction relief under Arkansas Rule of Criminal Procedure Rule 37.1.
In a previous decision, we addressed his direct appeal and affirmed his convictions on thirty
counts of distributing, possessing, or viewing matter depicting sexually explicit conduct
involving a child. Bishop v. State, 2015 Ark. App. 436, 467 S.W.3d 763. Bishop then filed
in the trial court a petition for postconviction relief; after conducting a hearing, the trial
court denied the petition. Bishop then appealed the trial court’s denial of his petition for
postconviction relief, and we ordered rebriefing for failure to comply with Arkansas
Supreme Court Rule 4-7(c) (2016)—the rule in effect at the time governing pro se briefs
filed by incarcerated persons in appeals of postconviction-relief proceedings. Bishop v. State,
2017 Ark. App. 246, at 2. Our supreme court subsequently amended Rule 4-7, striking
requirements of the 2016 rule that were the bases for our order for rebriefing. See Ark. Sup.
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Ct. R. 4-7(a) & (c) (2017). In Bishop v. State, 2017 Ark. App. 366, at 2 (per curiam), we
found that our order for rebriefing was no longer necessary because of the change in Rule
4-7, and we ordered the clerk of our court to restore the case on the calendar. The case
has now been restored, and we address Bishop’s appeal of the denial of his petition for
postconviction relief.
Bishop’s first argument is that the appeal record for this matter is incomplete. His
second, third, and fourth arguments are that the trial court erred in determining that
probable cause existed to search his residence, that a valid search warrant existed for forensic
analysis of seized equipment, and that he was not prejudiced “by the lack of meta data of
alleged chat transcripts entered into evidence.” His final argument is that the trial court
erred in concluding that he could be charged with multiple counts under Ark. Code Ann.
§ 5-27-602. We affirm. 1
On review, we assess the effectiveness of counsel under the two-prong standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), whereby a petitioner must
1
In his reply brief, Bishop rephrases arguments in his original brief that the trial court
erred in its determinations or conclusions. For the first time, he contends that the “trial
court erred in determining that counsel was effective in . . . failure to investigate” probable
cause to search his residence, that a valid search warrant existed for forensic analysis of seized
equipment, the lack of meta data of alleged chat transcripts entered into evidence, and the
number of counts he could be charged with under the pertinent statute. We decline to
address those issues. See Pigg v. State, 2016 Ark. 108, at 2, 486 S.W.3d 751, 753 (declining
to address issues where appellant raised new issues and points in his reply brief, and holding
that an argument cannot be raised for the first time in a reply brief).
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demonstrate that counsel made errors so serious that it prejudiced the outcome of the trial.
Sartin v. State, 2012 Ark. 155, at 2–3, 400 S.W.3d 694, 697–98. The reviewing court
indulges in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. The defendant claiming ineffective assistance of
counsel has the burden of overcoming this presumption by identifying the acts and omissions
of counsel which, when viewed from counsel’s perspective at the time of trial, could not
have been the result of reasonable professional judgment. Id. To satisfy the prejudice part
of the test, the petitioner must show that counsel’s deficient performance prejudiced the
defense, such that there is a reasonable probability that the trial’s outcome would have been
different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id.
Bishop filed a timely petition for postconviction relief, claiming that his trial counsel
was ineffective for failing to (1) file a motion to suppress evidence seized during execution
of a search warrant on his residence; (2) call witnesses to show that other people had access
to his computer; (3) object to the State’s mentioning the 5000 images depicting sexually
explicit conduct involving a child found on his computer, even though he was charged with
only 30 counts; (4) object to the State’s charging him with 30 counts instead of a single
count under Ark. Code Ann. § 5-27-602(a)(2) (Repl. 2013); and (5) file a motion to dismiss
on speedy-trial grounds. Simultaneously with the filing of his original petition, he filed a
motion for leave to file an amended petition. He later filed a second motion to file an
amended petition, which the trial court granted. With the second motion, he filed an
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amended petition containing the additional claims that his counsel was ineffective for failing
to (1) file a motion to suppress the evidence discovered on his computer pursuant to a search
warrant, (2) consolidate the charges against him, (3) subpoena his work records to show that
he could not have committed the charged offenses, and (4) introduce metadata of the chat
transcripts.
In its written order, the trial court applied the two-prong standard of Strickland v.
Washington, supra, and concluded that Bishop failed to prove either prong. The court ruled
that (1) an independent magistrate found that there was sufficient probable cause to support
both search warrants, and trial counsel concluded there was sufficient probable cause and
that there was no legal basis to challenge it; (2) trial counsel did not call any witnesses on
behalf of Bishop because he told counsel that he did not want any witnesses called; (3) it
was proper for the State to mention uncharged counts of child pornography under Ark. R.
Evid. 404(b) to show absence of mistake or accident; (4) under Ark. Code Ann. §
5-27-602(a)(2) (Repl. 2013), it was appropriate and permitted for the State to charge Bishop
with 30 counts of distributing, possessing, or viewing matter depicting sexually explicit
conduct involving a child; (5) Bishop failed to prove that the time for a speedy trial had
expired or that he was prejudiced by speedy-trial time being charged to him or being
excluded, and much of the delay was caused by Bishop’s asking for continuances; (6) trial
counsel’s decision not to join Bishop’s two separate cases was trial strategy, and Bishop failed
to show prejudice; (7) because he confessed and because—as found by the lower court and
the appellate court—he was in exclusive control of the computer, he was not prejudiced by
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his work records’ not being introduced at trial; and (8) he “was not prejudiced by any meta
data of chatroom transcripts allegedly not entered into evidence.”
I. Bishop’s Claim that the Appeal Record Was Incomplete
The trial record was admitted at the Rule 37 hearing as a self-authenticating
document. Bishop claims on appeal that he should have access to “at least the challenged
portions of this document,” particularly the search warrants for his residence and for forensic
analysis, 2 and the chat log metadata transcripts.
“[A]n appeal from an order denying postconviction relief is the review of the decision
made by the trial court based on the petition before it.” Carter v. State, 2015 Ark. 166, at
8, 460 S.W.3d 781, 789. An appellant in a Rule 37.1 proceeding is therefore limited to
the scope and nature of his arguments below, and he cannot add new arguments on appeal.
“In order for an issue that was not raised at trial or on direct appeal to provide a basis
for Rule 37 relief, the error alleged must be so fundamental as to render the judgment of
conviction void and subject to collateral attack.” State v. Rainer, 2014 Ark. 306, at 15, 440
S.W.3d 315, 324. No such exception exists here. Bishop did not allege at trial, on direct
appeal, or in his Rule 37 petition that the trial record was incomplete; nor did he file a
2
The search warrant to search Bishop’s computer is not in the record. During the
Rule 37 hearing, one of his trial attorneys testified that he had gone to the circuit clerk’s
office before trial and had read both search warrants, which “appeared to be based on
probable cause and to . . . have been properly issued and executed.”
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motion for access to a complete trial record. Thus, his claim is not cognizable as a Rule 37
claim.
II. Bishop’s Claim that the Trial Court Erred in Determining that Probable Cause Existed to
Search His House
Bishop alleged in his Rule 37 petition that his trial counsel was ineffective for failing
to file a motion to suppress evidence discovered when the search warrant was executed on
his residence. He abandoned this argument at the hearing on his petition, alleging instead
that there was insufficient probable cause to support the search warrant. An appellant in a
Rule 37.1 proceeding is limited to the scope and nature of his arguments below. Carter v.
State, supra. Moreover, with the exception of fundamental error that renders the judgment
void and subject to collateral attack, it is not appropriate to raise trial error, including
constitutional errors, for the first time in a Rule 37 proceeding. Flemons v. State, 2016 Ark.
460, at 10, 505 S.W.3d 196, 205. Thus, Bishop’s claim that the trial court erred in
determining that probable cause existed to search his residence is noncognizable.
III. Bishop’s Claim that the Trial Court Erred in Determining that a Valid Search Warrant
Existed for Forensic Analysis of Seized Equipment
In his amended Rule 37 petition, Bishop asserted that counsel was ineffective for
failing to file a motion to suppress evidence discovered on his computer because the search
warrant had “never been proven to exist.” At the hearing, however, he made no mention
of any ineffective-assistance-of-counsel claim in reference to the search warrant for his
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computer. He stated instead that he had “never seen” the second search warrant and could
not “prove it exists.”
Bishop claims that the trial court erred by finding that a valid search warrant existed
for forensic analysis of his seized equipment. For support of his claim, he states that “a valid
search warrant did not exist for forensic analysis of seized equipment and this search warrant
is also not included in the record.” Because he did not challenge the validity of the second
search warrant at trial or on direct appeal, he cannot raise the claim for the first time in a
postconviction proceeding. See Savage v. State, 2015 Ark. 212, at 11, 462 S.W.3d 326, 335
(noting that “with the exception of fundamental error sufficient to render the judgment
void and subject to collateral attack,” allegations of trial error cannot be raised for the first
time in a Rule 37.1 petition). Thus, Bishop’s third claim is noncognizable.
IV. Bishop’s Claim that the Trial Court Erred in Determining that He Was Not Prejudiced by the
Lack of Metadata of Alleged Chat Transcripts Entered into Evidence
Bishop alleged in his amended Rule 37 petition that trial counsel was ineffective for
“refusing to require introduction of the meta data of the chat transcripts submitted into
evidence.” He claimed that a number of the chatroom transcripts “were created, modified
and last accessed at exactly the same time,” which is “physically impossible,” and that the
transcripts amounted to nothing more than text files “dumped” on his computer. The State
responded that “a computer performing a virus scan will change the ‘last access date’ of a
file.”
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Bishop again abandoned any claim for ineffective assistance of counsel at the Rule
37 hearing, focusing solely on the time stamps of the chatroom transcript and stating that
the “last access date, the modified date, and the created timestamp should not be the same.”
The trial court found that “the chat transcripts were not determinative as to the outcome of
the case, as [Bishop] was ultimately convicted of possessing child pornography and not of
anything he said in the chat rooms.”
On appeal, Bishop avers that the trial court erred by determining that he was not
prejudiced by the failure to introduce the chatroom metadata. He claims that this omission
made it impossible for him “to challenge the authenticity of these chats.” His claim is
noncognizable in a Rule 37 proceeding because he failed to raise the issue on direct appeal.
See, e.g., Davis v. State, 2013 Ark. 118, at 4 (trial errors that could have been raised on direct
appeal are not cognizable in a Rule 37 proceeding).
V. Bishop’s Claim that the Trial Court Erred in Concluding that He Could Be Charged with
Multiple Counts under Ark. Code Ann. § 5-27-602
In his Rule 37 petition, Bishop asserted his trial counsel was ineffective for failing to
object to the State’s charging him with 30 counts under Ark. Code Ann. § 5-27-602(a)(2).
He claimed that the legislature “clearly expressed [its] will that only a single Class C felony
is authorized for the first offense.” At the evidentiary hearing, he stated that the legislature
intended for only the first offense to be a Class C felony and intended “to group all these
together to form a single charge.” On appeal, he reiterates the same statements as he did
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during the hearing—that the legislature intended a person to be charged with only a single
count under Ark. Code Ann. § 5-27-602(a)(2).
Neither at trial nor on direct appeal did Bishop challenge his multiple charges under
Ark. Code Ann. § 5-27-602(a)(2). Thus, his claim that the trial court incorrectly concluded
that he could be charged with multiple counts under the statute is not cognizable. He
cannot directly challenge his multiple charges in a petition for postconviction relief. See
Ward v. State, 2015 Ark. 325, at 6, 469 S.W.3d 350, 353 (noting that Rule 37.1 is not the
appropriate vehicle for a direct attack on a judgment of conviction); Rainer, 2014 Ark. 306,
at 15, 440 S.W.3d at 324 (only errors so fundamental as to render the judgment of
conviction void may be raised for the first time in a Rule 37 petition).
Affirmed.
ABRAMSON and HARRISON, JJ., agree.
Max Douglas Bishop, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
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