                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1285n.06

                                             No. 11-5073
                                                                                          FILED
                                                                                      Dec 13, 2012
                            UNITED STATES COURT OF APPEALS
                                                                                DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


ANTONIO RAFAEL BUSH,                                       )
                                                           )
          Petitioner-Appellant,                            )       ON APPEAL FROM THE
                                                           )       UNITED STATES DISTRICT
                 v.                                        )       COURT FOR THE MIDDLE
                                                           )       DISTRICT OF TENNESSEE
STEPHEN DOTSON, WARDEN,                                    )
                                                           )
          Respondent-Appellee.                             )
                                                           )



BEFORE: KEITH, MARTIN, and ROGERS, Circuit Judges.

          ROGERS, Circuit Judge. Antonio Bush appeals the district court’s denial of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254. Bush contends that the State of Tennessee’s

evidence was insufficient to support his conviction for especially aggravated robbery because

property was taken not directly from the assault victim, but from the room of two family members

who also lived in the home. Under Tennessee law, a robbery victim may include one who has a

greater interest in the property than the robber. Because there was sufficient evidence of such an

interest, there was sufficient evidence to convict Bush of aggravated robbery. The state appellate

court did not unreasonably apply federal law, and the district court therefore properly denied habeas

corpus.

          The criminal charges against Bush resulted from an incident in which he and four other men

broke into a house inhabited by Pascual Lopez-Blacos (“Lopez”) and several of his family members
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and friends. R.15-3-78, PageID# 335. After entering the house, two men entered the room where

Lopez was sleeping next to his young daughter. Id. The men demanded “deniro” [sic] at gunpoint,

and when Lopez claimed to have none, one of the men shot him in the leg. R.15-3-85–88, PageID

#342–45. Although the various witnesses offered conflicting testimony, the jury concluded that it

was Bush who shot Lopez.

        Meanwhile, as the events unfolded in Lopez’s bedroom, Bush’s accomplices went through

the other rooms in the house and took wallets from one of Lopez’s nephews and a non-family-

member. See R.15-4-101–02, PageID #1135–36. One or more of the men took a portable stereo

from a room inhabited by another one of Lopez’s nephews, Nicholas, and Nicholas’s wife. Id. After

the shooting, the group left the house. R.15-4-100, PageID #1134.

        At trial, a jury convicted Bush of especially aggravated robbery, in addition to aggravated

burglary and aggravated assault. R.15-6-113–14, PageID #601–02. Bush appealed his convictions

to the Tennessee Court of Criminal Appeals, which affirmed his conviction and twenty-two year

sentence. R.15-13, PageID #942. Among other contentions, Bush argued that there was an

insufficient nexus between his assault of Lopez and the robbery—a showing necessary to establish

an essential element of especially aggravated robbery. He claimed that the state failed to prove that

he took property “from the person” of Lopez, as that statutory phrase has been interpreted by

Tennessee courts. The Tennessee Court of Criminal Appeals disagreed, concluding that there was

evidence that Bush stole property from a house that was owned by Lopez. The court also ruled in

the alternative:


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        Taken in the light most favorable to the state, a rational jury could conclude that Mr.
        Lopez had control of the house from which the defendant and his codefendants took
        the stereo and CD. Although Mr. Lopez was not present in the bedroom when the
        items were taken, case law demonstrates that he still constructively possessed them.
        Moreover, despite the fact that Mr. Lopez was not the owner of the items, he
        obviously had a greater right to their possession than the defendant. Thus, the
        evidence is sufficient to show a “taking” from the person of Mr. Lopez.

Tennessee v. Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755, at *7 (Tenn. Crim. App.

Apr. 14, 2004).

        Bush applied to the Tennessee Supreme Court for permission to appeal the appeals court’s

judgment, and his application was denied. R.15-16, PageID #1034. His subsequent petition for

post-conviction relief was also denied. R.15-18-84, PageID #936. He appealed this denial to the

Tennessee Court of Criminal Appeals, which again affirmed the trial court order. R.15-22, PageID

#848. Finally, the state Supreme Court denied his application for permission to appeal the denial

of post-conviction relief. R.15-25, PageID #116.

        After exhausting state remedies, Bush filed a petition for a writ of habeas corpus in the

United States District Court for the Western District of Tennessee. The case was subsequently

transferred to the Middle District of Tennessee, which granted respondent warden’s motion for

summary judgment and accordingly denied Bush’s petition. The district court largely adopted the

opinion of the Tennessee Court of Criminal Appeals. Bush now appeals the district court’s denial

of his petition.

        The Tennessee court’s conclusion that there was sufficient evidence to convict Bush of

aggravated robbery beyond a reasonable doubt is compelled by: (1) a state-law determination that


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Mr. Lopez was the owner of the stereo for robbery purposes if he had a greater right to possess it

than Bush, and (2) sufficient evidence that he had such a greater right.

       The crime of especially aggravated burglary is “robbery as defined in § 39-13-401: (1)

[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury.”

Tenn. Code Ann. § 39-13-403(a). “Robbery” is defined as “the intentional or knowing theft of

property from the person of another by violence or putting the person in fear.” Id. § 39-13-401.

Theft of property, in turn, occurs when “with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s effective consent.” Id.

§ 39-14-103(a). An “owner” is someone, “other than the defendant, who has possession of or any

interest . . . in property, even though that possession or interest is unlawful and without whose

consent the defendant has no authority to exert control over the property.” Id. § 39-11-106(a)(26).

       The definitive legal reasoning of the Tennessee Court of Criminal Appeals in this case

establishes that Lopez was sufficiently the owner of the stereo for robbery purposes if he had a

greater right to possess it than Bush:

       “[E]vidence of possession is ordinarily sufficient proof of ownership; and this is true
       although the one in possession may have held the property as bailee, trustee, or
       otherwise having only a special interest, and not a general ownership of the
       property.” Jones v. State, 166 Tenn. 102, 102, 59 S.W.2d 501, 501 (1933). In
       determining whether a defendant has been in possession of drugs or stolen property,
       this court has held that “possession means control.” See Peters v. State, 521 S.W.2d
       233, 235 (Tenn. Crim. App. 1974). Other jurisdictions have held that “possession”
       can be established simply by showing that the victim has a greater right to the
       property than the defendant. See State v. McColl, 813 A.2d 107, 127 (Conn. Ct. App.
       2003); State v. Coburn, 556 P.2d 382, 387 (Kan. 1976); State v. Cutwright, 626
       So.2d 780, 784 (La. Ct. App. 1993); State v. White, 702 A.2d 1263, 1270 (Mary.
       App. 1997); People v. Needham, 155 N.W.2d 267, 270 (Mich. Ct. App. 1967); Gray

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       v. State, 797 S.W.2d 157, 161 (Tex. Ct. App. 1990); see also State v. John Wayne
       Singleton, No. 1, Decatur County (Tenn. Crim. App. Sept. 2, 1987), app. denied
       (Tenn. Nov. 16, 1987) (noting in an armed robbery case that the cashier had a right
       of possession “superior” to that of the defendant).

Tennessee v. Bush, M2002-02390-CCA-R3CD, 2004 WL 794755, at *7 (Tenn. Crim. App. Apr.

14, 2004). While the Tennessee courts could have concluded that “ownership” requires the type

of title that is good against all other claimants, there was no federal constitutional requirement

that ownership be defined that way, and there is moreover no Tennessee precedent cited to us

that would compel such a narrow state-law interpretation.

       The Tennessee court has the power to interpret Tennessee law, at least where the law has

not already been clearly interpreted to the contrary. See Jenkins v. Dailey, 348 F. App’x 114,

119–22 (6th Cir. 2009). Tennessee cases say that, for aggravated robbery purposes, a night

watchman possesses property of the owner of the building being robbed, even though the night

watchman has no personal possessory interest. See Jones v. Tennessee, 383 S.W. 2d 20, 24

(Tenn. 1964). The greater property interest that the night watchman had was presumably the

authority to keep a burglar from taking property in the building.

       Moreover, it can hardly be argued that there was not sufficient evidence that Lopez had a

greater right to possession of the stereo than Bush. A rational trier of fact could have concluded

that Lopez had a sufficient right to actual or constructive possession of his nephew’s stereo by

virtue of a co-tenant’s or family member’s greater interest in property than that of an intruder.

       Our review of the denial of a habeas petition is limited by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). Bigelow v. Williams, 367 F.3d 562, 569–70 (6th Cir. 2004). We

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may grant the petition only if, for the purposes of this case, the state court decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” Id. (quoting 28 U.S.C. § 2254(d)(1)). A judgment is

contrary to clearly established federal law “if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court on a set of materially indistinguishable facts.” Terry

Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision results in an unreasonable

application of clearly established federal law “if the state court correctly identifies the governing

legal principle from [the Supreme Court’s] decisions but unreasonably applies it to the facts of

the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002). For a state court decision to

violate this provision, it must be “objectively unreasonable.” Id. “[A]n unreasonable application

is different from an incorrect one,” and the federal habeas court may not substitute its judgment

for that of the state court. Id. For a federal habeas court to satisfy the standard set by AEDPA,

the state’s decision must be “so clearly incorrect that it would not be debatable among reasonable

jurists.” Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (quoting Drinkard v. Johnson, 97

F.3d 751, 769 (5th Cir. 1996)). Jackson v. Virginia, 443 U.S. 307 (1979), sets forth the standard

for reviewing the sufficiency of the evidence in support of a conviction. Id. at 318. “[T]he

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Id. at 319 (emphasis in original).


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       This means that in AEDPA sufficiency-of-the-evidence cases there is “double” deference.

Habeas relief requires us to determine that the state court’s application of the deferential Jackson

standard was itself unreasonable. The Tennessee court was not unreasonable in concluding that

the co-tenant uncle had the right to keep an armed intruder from taking his nephew’s stereo.

       The district court’s judgment denying habeas corpus relief is affirmed.




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