United States v. Bishop , 111 F. App'x 343 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2004
Charles R. Fulbruge III
Clerk
No. 03-41439
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL DEAN BISHOP,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-17-1
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Before REAVLEY, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joel Dean Bishop appeals his jury conviction for possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). Bishop contends that the district court erred when
it denied his motions for continuance so that a proper
investigation could be conducted. He also contends that defense
counsel rendered ineffective assistance when he failed to prepare
for trial and conduct an investigation in hopes that the district
court would grant a continuance.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-41439
-2-
Bishop concedes that the amount of preparation time was not
inadequate, that the Government had an open file discovery
policy, and that the case was not complex. Bishop has failed to
give examples of defenses that could have been asserted if the
continuance were granted. He has also failed to identify any
potential witnesses by name or indicate how the substance of
their testimony would have changed the outcome of his case.
Bishop’s conclusional allegations that defense counsel was not
prepared and did not conduct a proper investigation are
insufficient to show that the district court abused its
discretion and that he suffered serious prejudice as a result of
the denial of his motions to continue the trial. See United
States v. Scott, 48 F.3d 1389, 1393 (5th Cir. 1995).
Further, although this court generally does not allow claims
for ineffective assistance of counsel to be resolved on direct
appeal when those claims have not been presented before the
district court, the record is sufficiently developed for this
court to consider Bishop’s ineffective assistance of counsel
claim. See United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991).
Bishop has failed to demonstrate how defense counsel’s
performance was deficient and how this deficient performance
prejudiced his defense. Although defense counsel met with Bishop
on only one occasion outside of the courthouse, he did have other
discussions with Bishop prior to trial. Further, although the
No. 03-41439
-3-
motions to suppress were untimely, they were considered by the
district court, and Bishop’s statement to law enforcement
officers was not introduced at trial. Finally, Bishop’s
conclusional allegations that defense counsel failed to find any
witnesses, present a defense, prepare for trial, and investigate
in hopes that the district court would grant a continuance are
insufficient to support a claim for ineffective assistance of
counsel. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Accordingly, the district court’s judgment is AFFIRMED.