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Bishop v. United States

United States District Court, E.D. New York

March 2, 2015

KAWRON BISHOP, pro se, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM & ORDER

DORA L. IRIZARRY, District Judge.

Pro se [1] petitioner, Kawron Bishop ("Petitioner"), filed this petition for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). ( See generally Docket Entry No. 1 ("Petition").) On September 29, 2010, Petitioner pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) ("Section 922(g)(1)"), and one count of possession of a firearm with a defaced serial number, in violation of 18 U.S.C. § 922(k) ("Section 922(k)"). ( See generally Docket 10-CR-00113, Entry No. 36.) On April 1, 2011, this court sentenced Petitioner to 46 months of imprisonment followed by three years of supervised release. ( See generally id., Entry No. 49.) Petitioner challenges his sentence on the grounds that: (1) the indictment obtained was in violation of 18 U.S.C. § 3161 ("Speedy Trial Act"); (2) the indictment did not properly allege his offense and the essential facts involved, as required by Rule 7(c)(1) of the Federal Rules of Criminal Procedure; and (3) he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. (Petition at ¶ 12.) Pursuant to Section 2255, Petitioner also seeks an evidentiary hearing to further develop the record regarding the merits of his claims. (Id. ) For the reasons set forth below, the petition and Petitioner's demand for an evidentiary hearing are denied.

BACKGROUND

On January 8, 2010, two plainclothes New York City Police Department ("NYPD") officers, patrolling in an unmarked vehicle, witnessed a livery car run through a red light while traveling southbound on Stuyvesant Avenue in Brooklyn, New York. (Memorandum of Fact and Law in Support of Motion Filed Under 28 U.S.C. § 2255 ("Pet. Br.") at 2; Government's Response in Opposition to Petition to Vacate Conviction Pursuant to 28 U.S.C. § 2255 ("Opp.") at 3.) When the officers stopped the livery car, they observed Petitioner open the back door of the car and step out with a firearm in hand. (Pet. Br. at 2.) Upon seeing the officers, Petitioner fled on foot, still wielding the firearm. (Pet. Br. at 2; Opp. at 3.) One of the officers ran after Petitioner. (Pet. Br. at 2; Opp. at 3.) During the chase, this officer observed Petitioner throw the firearm aside. (Pet. Br. at 3; Opp. at 3.) The officer briefly stopped to retrieve it then continued his pursuit. (Pet. Br. at 3; Opp. at 3.) The other officer gave chase in the patrol vehicle and, after a brief pursuit, managed to apprehend Petitioner, who was then placed under arrest for possession of a firearm. (Opp. at 3; Pet. Br. at 3.)

On January 13, 2010, while Petitioner was in local custody, U.S. Magistrate Judge Lois Bloom issued a warrant for his arrest pursuant to a sworn complaint alleging that Petitioner, a previously convicted felon, possessed a firearm on January 8, 2010. ( See generally Docket 10-CR-00113, Entries Nos. 1 ("Compl.") and No. 2.) According to the complaint the firearm was a "FEG 9 millimeter semi-automatic pistol." (Compl. at ¶ 4.)

On January 20, 2010, Petitioner was arrested on the federal arrest warrant and arraigned on the complaint before U.S. Magistrate Judge Roanne L. Mann. ( See generally Docket 10-CR-00113, Entry No. 3.) On February 18, 2010, a federal grand jury returned a two-count indictment charging Petitioner with being a felon in possession of a firearm and possession of a firearm with a defaced serial number, in violation of 18 U.S.C. §§ 922(g)(1), 922(k), 924(a)(1)(B), 924(a)(2), and 3551 et. seq. ( Id., Entry No. 9 ("Indictment") at ¶¶ 1, 2.) The indictment alleged that the firearm was "a.380 caliber FEG semi-automatic pistol." (Id. at ¶¶ 1-3.)

Despite being represented by counsel, Petitioner subsequently submitted a pro se motion on March 1, 2010, to dismiss the indictment for violation of the Speedy Trial Act. ( See generally Docket 10-CR-00113, Entry No. 12.) On March 16, 2010, this court issued an order denying the motion. United States v. Bishop, 2010 WL 984676, at *1-2 (E.D.N.Y. Mar. 16, 2010). On July 30, 2010, Petitioner's defense counsel moved to suppress the firearm, as well as statement evidence, claiming that the car stop leading to his arrest was invalid. ( See generally Docket 10-CR-00113, Entry No. 31.) On September 14, 2010, this court held a hearing on the motion, at which the court heard testimony from the two NYPD officers who had apprehended and arrested Petitioner on January 8, 2010. ( See generally Opp. at Exhibit 1, Suppression Hearing Transcript ("Suppression Tr.").) Upon being presented with a firearm, one of the officers testified that it was "the firearm that my partner recovered" and that he could recognize it because he had scratched his initials into the firearm when he had vouchered it. (Id. at 32-33.) The officer also testified that following the arrest, Petitioner stated, "[y]ou didn't see me throw any gun" and later told other inmates, "[t]hey found the gun, they found the gun." (Id. at 37-38.) At the close of the suppression hearing, in an order dated September 14, 2010, this court denied Petitioner's motion to suppress. ( See Docket 10-CR-00113, Sep. 14, 2010 Minute Entry.)

On September 29, 2010, Petitioner pled guilty to both counts of the indictment. ( See generally Docket 10-CR-00113, Entry No. 36.) On April 1, 2011, this court sentenced Petitioner to 46 months of imprisonment on each count, to run concurrently, followed by three years of supervised release. ( Id., Entry No. 49.) On October 26, 2011, Petitioner filed the instant motion, pursuant to Section 2255, challenging his sentence on the grounds that: (1) his indictment was filed more than 30 days after his arrest warrant was signed, in violation of the Speedy Trial Act; (2) his indictment failed to properly allege his offense and the essential facts involved; and (3) he received ineffective assistance of counsel. (Petition at ¶ 12.) Petitioner also seeks an evidentiary hearing pursuant to Section 2255 to further develop the record regarding the merits of these claims. (Id. )

DISCUSSION

I. Speedy Trial Act Violation

Petitioner contends that the filing of the indictment violated the Speedy Trial Act. (Pet. Br. at 4-6.) Petitioner failed to make this claim on direct appeal, however, and does not adequately establish good cause for, or prejudice from, this failure, nor does he argue actual innocence. ( See id. ) Accordingly, Petitioner's Speedy Trial Act claim is procedurally barred. See Bousley v. United States, 523 U.S. 614, 622 (1998) (claims not raised on direct appeal may not be raised in habeas review unless the defendant first demonstrates either cause and actual prejudice, or that he is actually innocent); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (adopting "cause and prejudice" test). Furthermore, by pleading guilty unconditionally, Petitioner waived any defects in the prior proceedings, including those related to his right to a speedy trial. See United States v. Coffin, 76 F.3d 494, 496 (2d Cir. 1996) ("Because a defendant's right to a speedy trial is nonjurisdictional, a knowing and voluntary guilty plea waives a speedy trial claim unless the defendant specifically reserves the right to appeal"). Nevertheless, in an abundance of caution, the court examines the merits of Petitioner's claim that his indictment violated the Speedy Trial Act.

The Speedy Trial Act mandates the "dismissal of charges against a defendant who is not indicted, arraigned, or brought to trial within periods of time set forth in the statute." United States v. Gaskin, 364 F.3d 438, 451 (2d Cir. 2004). No more than 30 days can pass between arrest and indictment. 18 U.S.C. § 3161(b) ("Section 3161(b)")). Under Section 3161(b), an "arrest" does not occur until an individual is "taken into custody after a federal arrest for the purpose of responding to a federal charge." United States v. Bloom, 865 F.2d 485, 490 (2d Cir. 1989) (citing United States v. Johnson, 815 F.2d 309, 312 (5th Cir. 1987)); see also United States v. Jones, 129 F.3d 718, 721 (2d Cir. 1997).

On March 1, 2010, Petitioner filed a motion to dismiss the indictment, claiming it was in violation of Section 3161(b). ( See generally Docket 10-CR-00113, Entry No. 12.) On March 16, 2010, this court denied that motion on the grounds that Petitioner's arrest on federal charges occurred on January 20, 2010, which was 29 days prior to his indictment on February 18, 2010 and therefore within the 30-day window prescribed by Section 3161(b). Bishop, 2010 WL 984676, at *1. Petitioner makes the same argument in the instant petition that he did in the motion to dismiss, but again leaves uncontested the fact that his arrest on federal charges occurred on January 20, 2010. ( See Pet. Br. at 4-6.) ...


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