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BISHOP v. U.S.

November 8, 2004.

CHRISTOPHER BISHOP, Defendant-Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Chris Bishop, appearing pro se, has filed a motion for relief pursuant to 28 U.S.C. § 2255. Following a jury trial presided over by the undersigned, Bishop was convicted of conspiring to traffic in firearms without a license, in violation of 18 U.S.C. § 371; trafficking in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A); and possessing one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Bishop was sentenced by this Court principally to concurrent terms of 60 months' imprisonment on the conspiracy and trafficking counts, and a consecutive term of 17 months' imprisonment on the felon-in-possession count. The Second Circuit affirmed Bishop's conviction and sentence on direct appeal. United States v. Bryce (Bishop), No. 02-1350, 59 Fed. Appx. 398, 2003 WL 1025230 (2d Cir. Mar. 7, 2003), cert. denied 124 S.Ct. 273 (2003). In addition to his § 2255 motion, Bishop requests that counsel be appointed to represent him — a request which I now deny, for the reasons stated below.

BACKGROUND

  The facts as developed at trial have been recounted in a prior opinion, 2002 WL 413915, familiarity with which is assumed. Between July and October of 1999 Bishop participated in a conspiracy to purchase guns in Kentucky and sell them for a substantial profit in New York City. Bishop's alleged co-conspirators were Quincy Hale, Craig Bryce, Anthony Drake, and Don Saunders. Hale testified for the government at Bishop's trial, and the government also introduced the plea allocutions of Bryce, Drake, and Saunders, appropriately redacted and made the subject of a limiting instruction by the Court. The other principal government witnesses were Fonda Reeks, Bishop's girlfriend and roommate in the late summer of 1999, and John Robert, a New York City undercover detective who purchased guns from Saunders.

  According to Hale's testimony, beginning in the fall of 1998, he and Bryce collaborated on several occasions to buy guns in Kentucky and resell them in New York City. Because Hale had the necessary Kentucky identification documents, he purchased the guns at Bryce's direction. In the summer of 1999, Hale came into contact with his former high school classmates Bishop and Drake, both of whom recently had been released from prison, and discussed his gun trafficking plans. (Bishop had been released from a halfway house in July). Both Bishop and Drake showed interest in participating. The three of them then made plans to purchase a number of guns and transport them to New York, where Bryce would arrange for them to be sold.

  Hale testified further that he, Bishop, and Drake each contributed money toward the purchase of the guns — $400 by Hale, $1,000 by Bishop, and $300-$350 by Drake. Between August 26 and 27, 1999, they selected and Hale purchased five guns from one pawnshop and twelve guns from another pawn shop, all of which they picked up the next day. Because of Drake's and Bishop's prior criminal histories, Hale alone submitted the necessary paperwork to purchase the guns.

  The first group of five guns was distributed as follows: Bishop took two, one of which he sold, Drake took one and sold it, and Hale took two. The second group of twelve guns was placed in a closet at Bishop's apartment, which he shared with his then girlfriend Fonda Reeks. According to Hale, Bishop obtained a rental car, and on August 27, he and Drake left for New York with the guns hidden in a speaker cabinet in the trunk.

  Although Hale helped them load the guns in the car, he decided to stay in Kentucky. Bishop later called Hale from New York and told him that he and Drake had so far realized $1,500 from the sale of some of the guns. When Bishop and Drake returned, they showed Hale a photograph of them in New York City with Bryce and some gold jewelry they bought there. They also told Hale that they had left some guns with Bryce to sell. Bryce later told Hale that he had sent an additional $1,000 from the sale of the guns to Bishop. Hale eventually received approximately $350 in payment in kind from Bishop.

  Fonda Reeks corroborated Hale's testimony in several respects. She testified that in July 1999, Bishop, Hale, and a third person (Drake) started planning a trip to New York City to see "Shorts" (Bryce). Bishop's mother rented a car for him to use for the trip (since he himself did not have a credit card). On the week of the trip, Bishop brought home a heavy box and placed it in the closet of the apartment, instructing Reeks not to bother it. Immediately before the New York trip, Bishop told Reeks to stay upstairs while he was downstairs with Hale and Drake. After Bishop left, Reeks noticed that a speaker cabinet was missing and that the box in the closet was much lighter and contained only smaller empty boxes. When Bishop returned from New York, he showed Reeks the same photograph and jewelry that he showed Hale. Later, he received in the mail a money order from Bryce. Bishop informed Reeks that Bryce still owed him money and that Hale claimed that Bishop owed him money.

  John Robert testified that while he was working undercover, he purchased eight guns from Don Saunders in New York City between September 1999 and February 2000.*fn1 Saunders told Robert that the guns he sold came from Kentucky and also named "Shorts" (Bryce) and "Slim" (Hale) as suppliers. Three of the guns bought by Robert were traceable to the purchases made by Hale on August 25, 1999. Another gun was traceable to a purchase made by Bryce.

  Bishop returned to prison on October 28, 1999. According to Hale and the plea allocutions of Bryce and Saunders, the others continued to deal in firearms through the end of 1999 and into the beginning of 2000.

  Following a jury trial, Bishop was convicted of conspiring to traffic in firearms without a license, in violation of 18 U.S.C. § 371; trafficking in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A); and possessing one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On June 11, 2002, I sentenced Bishop principally to concurrent terms of 60 months' imprisonment on the conspiracy and trafficking counts, and a consecutive term of 17 months' imprisonment on the felon-in-possession count. I further ordered that the federal sentence run consecutive to a state sentence Bishop was serving for a Kentucky parole violation. Upon appeal, both conviction and sentence were affirmed by the Second Circuit by summary order.

  On July 15, 2004, Bishop filed this present motion for relief pursuant to 28 U.S.C. § 2255. The government opposed the motion in a memorandum of law filed on August 27, 2004. Bishop then wrote a letter to the Court, dated September 1, 2004, not addressing the substantive merits of his case but requesting appointment of counsel on his behalf. The government responded in a letter brief, dated October 29, 2004, opposing Bishop's request. STANDARD OF REVIEW

  In assessing a § 2255 motion, relief is only available "for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in [a] complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (internal quotation marks and citation omitted). § 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam). Nor may a petitioner assert a claim under § 2255 that has not been asserted on direct review, unless the petitioner "can demonstrate either cause [for the default] and actual prejudice or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citation omitted). Finally, a "court may entertain and determine such motion without requiring the production of the prisoner at the hearing." 28 U.S.C. § 2255; see Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001).

  Bishop makes four separate claims in his § 2255 motion. First, he claims ineffective assistance of counsel. Second, that he was incorrectly sentenced. Third, there was insufficient evidence to convict him. And fourth, Bishop alleges prosecutorial misconduct. For the reasons stated below, Bishop's motion will be denied in its entirety.

  ANALYSIS

  A. Request for appointment of counsel

  "Petitioners do not have a constitutional right to counsel in a collateral challenge to a conviction or sentence." Jackson v. Moscicki, Nos. 99 Civ. 2427 (JGK), 99 Civ. 9746 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000), citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). 28 U.S.C. § 2255 states, "Appointment of counsel under this section shall be governed by section 3006A of title 18." That section states, in turn, that the Court has discretion to appointment counsel to represent a petitioner seeking § 2255 relief when "the interests of justice so require."

  The Second Circuit has articulated factors that courts should consider when deciding whether to appoint an attorney to represent an indigent civil litigant in an analogous context:
In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

  While these standards were first articulated in the context of a statutory provision now codified at 28 U.S.C. § 1915(e), they are also applicable in considering whether the interests of justice require appointment of counsel in a § 2255 petition.

  Elaborating on these factors, the Court added in Cooper v. A Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989):
For many reasons courts should not grant such applications indiscriminately. Volunteer lawyer time is a precious commodity. Courts are given a major role in its distribution. Because this resource is available in only limited quantity, every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste.
  For reasons explained below, Bishop's claims do not meet the threshold requirement that they are likely to be of substance. Therefore, Bishop's request for appointment of counsel is denied.

  B. Ineffective assistance of counsel

  Well-established standards govern consideration of claims of ineffective assistance of counsel. To establish such a claim, a convicted defendant has the burden to show (1) that counsel's representation "fell below an objective standard of reasonableness" measured by "prevailing professional norms," and (2) that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 668, 688, 694 (1984); accord United States v. Best, 219 F.3d 192. Reasonable probability means "probability sufficient to undermine the confidence in the outcome. Strickland, 466 U.S. at 694, cited in Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994). Fairly assessing an attorney's representation "requires that every effort be made to eliminate the distorting effect of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689 (citations and quotation omitted). Mere omission of a nonfrivolous argument, and actions or omissions that might be regarded as "sound trial strategy," do not amount to ineffective assistance. Id., cited in McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999).

  The Supreme Court has recognized that the "object of an ineffectiveness claim is not to grade counsel's performance." Strickland, 466 U.S. at 697. Therefore, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. Here, Bishop fails to establish the second prong of his burden. Given the strong evidence of guilt presented at trial, "there is little reason to ...


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