NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1285n.06 No. 11-5073 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ANTON I O RAFA ELBU SH, Petitioner-Appellant,

v. STEPHEN DOTSON, WARDEN, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT C OUR T FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: KEI TH, MARTI N, and ROGERS, Circuit J udg es. ROGERS, Circuit J udg e. Antonio Bush appea ls the district court’s denial of his petition for

a writ of habea s corpus under 28 U.S.C. § 2254

. Bu sh contends that the State of Tenne ssee’ s evidenc e was insufficient to support his convictio n fo r es pecia lly ag g ravated robber y beca use proper ty was taken not dir ectly from the assault victim, but from the room of two family members who also lived in t he home. Under Tenne ssee law, a robber y victim may include one who has a g rea ter interest in the proper ty than the robber

. Be cause there was s u ff i cient evidenc e of such an interes t , t h ere was sufficient evidence to convict Bush of agg ravated robbery

. The state appellate court did not unrea sonably apply fede ral law, and the district court there fore proper ly denied habea s corpus. The criminal char g es ag ainst Bush resulted from an incident in which he and four other men broke into a house inhabited by Pascual L opez-Bla cos (“L opez”) and sever al of his family membersNo. 11-5073

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and fr iends. R.15-3-78, Pag eI D# 335. After enter ing the house, two men enter ed the r oom where L opez was sleeping next to his y oung daug hter. Id. The men demande d “denir o” [si c] at g unpoint, and when L opez c laimed to ha ve none, one of the men shot him in the leg

. R.15-3-85–88, Pag eI D #342–45. Although the various witnesses offe red conflicting testimony , the jury conclude d that it was B ush who shot L opez. Meanw hile, as the events unfolded in L opez’s bedroom, Bush’ s acc omplices went throug h the other rooms in the house and took wallets from one of L opez’s nephew s and a non-family

member. See R.15-4-101–02, Pag eI D # 1 1 3 5–36. One or more of the men took a portable stereo from a room inhabited by another one of L opez’s nephew s, Nicholas, and Nicholas’s wife. Id. After the shooting, the g roup left the house . R.15-4-100, Pag eI D #1134. At trial, a ju ry convicted Bush of espec ially ag g ravated robber y , in addition to ag g ravated burg lary and ag g ravated assault. R.15-6-113–14, Pag eI D #601–02. Bush appea led his convictions to the Tenne ssee Court o f C ri m i n al Appea ls, which aff irmed his conviction and twenty -two y ear sentenc e. R.15-13, Pag eI D #942. Among other contentions, Bush ar gu ed t h at there was an insufficient nexus betwee n his assault of L opez and the robber y —a showing nece ssary to establish

an essential element of espec ially ag g ravated robber y . He claimed that the state failed to prove that he took proper

ty “fr om the person” of L o p ez , as that statutory phrase has been interpre ted by Tenne ssee courts. The Tenne ssee Court of Criminal Appea ls disag ree d, concluding that there was evidenc e that B ush stole proper ty from a house that was owne d by L opez. The cour

t also ruled in the alter native:

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Take n in the light most favor able to the state, a rational jury could conclude that Mr. L opez had control of the house from which the defe ndant and his codef endants took the stereo and CD. Although Mr. L opez was not prese n t i n the bedroom when the items wer e taken, case law demonstrates that he still constructively possessed them. Moreove r, despite the fac t that Mr. L opez was not the owner of the items, he obviously had a g reater rig ht to t h eir possession than the defe ndant. Thus, the evidenc e is sufficie nt to show a “taking ” fr om the person of Mr. L opez. Tennessee v. Bush , No. M2002-02390-CCA-R3-CD, 2004 WL 7947 55, at *7 (Tenn. Crim. App. Apr. 14, 2004). Bush applied to the Tenne ssee Supreme Court f or permission to a

ppeal the appea ls c ourt’s judgme nt, and his application was denied. R.15-16, Pag eI D #1034. His subsequent petition for post-conviction relief was also denied. R.15-18 -8 4 , P ageI D #936. He appeale d this denial to the Tenne ssee Court of Criminal Appea ls, which ag ain aff irmed the trial court order

. R.15-22, Pag eI D #848. Finally , the s tate S upreme Court denied his application for permission to appea l the d en i al of post-convic tion relief. R.15-25, Pag eI D #116. After exhausting state reme dies, Bush filed a petition for a writ of habea s corpus in the United States District C o u rt for the Western District of Tenne ssee. The case was subsequently transfe rre d to the Middle Distr i ct of Tenne ssee, which g rante d responde nt war den’s motion for summary judgme nt a

nd acc ording ly

denied B ush’s petition. The district court larg ely adopted the opinion of the Tenne ssee Court of Criminal Appe als. Bush now appea ls the district c ourt’s denial of his petition. The Tenne ssee court’s conclusion that there was sufficie nt evide n ce to convict Bush of ag g rava ted robbery bey ond a re asonable doubt is compelled by : (1) a state-law deter mination that

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Mr. L opez was the owner of the stereo for robber y purposes if he had a g reater rig h t t o possess it than B ush, and (2) sufficie nt evidence that he had suc h a g reater rig ht. The crime of espec ially ag g ravated burg lary is “robbe ry as define d in § 3 9 -1 3 -4 0 1 : (1) [a] ccomplished with a deadly wea pon; and (2) [w] here the v i ct i m suffe rs serious bodily injury .” T en n . C ode Ann. § 39-13-403( a). “Robbery” is define d as “the intentional or knowing theft o f proper ty from the person of another by violence or putting the person in fea r.” Id. § 3 9 -1 3 -4 01. Theft of proper

ty , in turn, occur s when “with intent to depriv e t h e owner of proper ty , the person knowing ly obtains or exercises control over the proper ty without the owner ’s eff ective consent.” Id. § 39-14-103( a). An “owne r” is someone, “other than the defe ndant, who has possession of or any interest

. . . in proper

ty , even though that possession or interest is unlawful and withou t whose consent the defe ndant has no authority to exert control over the proper ty .” Id. § 39-11-106( a)( 26). The definitive leg al rea soning of the Tenne ss ee C o urt of Criminal Appea ls in this case establishes that L opez was sufficie ntly the owner of the stereo for ro b b er y p u rp o s es if he had a g rea ter rig ht to possess it t han B ush: “[E] vidence of possession is ordinarily sufficie nt proof of owner ship; and this is true althoug h the one in possession m ay have held the proper ty as bailee, trustee, or otherwise having only a specia l interest, an d n o t a g ener al owner ship of the proper t y .” Jones v. State , 166 Tenn. 102, 102, 59 S.W .2d 501, 501 (1933). I n deter mining whether a defe ndant has been in possession of drug s or stolen proper ty , 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 s i mply by showing that the victim has a g reater rig ht to the proper ty than the defe ndant. See State v. McColl , 813 A.2d 107, 127 (Conn. Ct. App. 2003); State v. Cob u r n , 556 P.2d 382, 387 (Ka n. 1976); State v. Cutwr ight , 626 So.2d 780, 784 (L a. Ct. App. 1993); State v. W hite , 702 A.2d 1263, 1270 (Mar y . App. 1997); People v. Needham , 155 N.W.2d 267, 270 (Mich. Ct. App. 1967); Gray - 4 -No. 11-5073

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v. State , 797 S.W .2d 157, 161 (Tex. Ct. App. 1990 ); s ee also State v. John W ayne Singleton , No. 1, Dec atur County (Tenn. Crim. App. Sept. 2, 1 9 8 7 ), app. denied (Tenn. N ov. 16, 1987) (noting in a n arme d robber

y case that the cashie r had a rig ht of possession “super ior” to that of the de fenda nt). Tennessee v. Bush , M2002-02390-CCA-R3CD, 2004 WL 794755, at *7 (Te nn. Crim. App. Apr. 14, 2004). While the Tennesse e cour ts could have c oncluded that “ owner ship” requir es the ty pe of title that is good a g ainst all other cla imants, there wa s no fede ral c onstitut ional require ment that owner ship be define d that way , and ther e is moreove r no Tenne ssee pr ece dent cited to us that would compel such a narr ow state-la

w interpre tation. The Te nnessee court ha s the power to interpret Te nnessee law, at lea st where the law ha s not alrea dy

been c lear ly

interpre ted to the contra

ry . See J enkins v . Dailey , 348 F. App’ x 114, 119–22 (6th Cir. 2009). Tenne ssee c ases sa y that, for a g g ravated robbe ry purposes, a

night watchma n possesses prope rty

of the owne r of the building being robbed, e ven thoug h the nig ht watchma n has no per sonal possessory interest. See J

ones v. Tenne

ssee , 383 S.W . 2d 20, 24 (Tenn. 1964) . The g reater prope rty interest that the nig ht watchman ha d was pre sumably the authority to keep a burg lar fr om taking pr operty in the building. Moreove r, it can ha

rdly be ar g ued that ther e wa s not sufficient evide nce tha t L opez had a g rea ter rig ht to possession of the stereo tha n Bush. A r ational trier of fac t could have c oncluded that L opez had a suff

icient rig ht to actual or c onstructive possession of his nephe w’s stere o by virtue of a

co-te nant’s or f

amily member’ s g reater intere st in property than that of a

n intruder. Our re view of the denial of a habea s petition is l imited by the Antiterror ism and Effe ctive Dea th Penalty

Act (“ AEDPA”)

. Bigelow v. W illiams , 367 F.3d 562, 569–70 ( 6th Cir. 2004). We - 5 -No. 11-5073

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may g rant the pe tition onl y

if, for the purposes of this ca se, the state c ourt dec ision “was contr ary to, or involved an unre asonable application of, c lear ly established F eder al law, a s determined by the Supreme Court of the United States.” Id. (quoting 28 U.S.C. § 2254(d)(1)) . A judg ment is contra ry to clear ly established fe dera l law “if the state cour t arrive s at a c onclusion opposite to that rea ched by

[t he Supreme ] C ourt on a que stion of law or if the sta te cour t decides a

case differ ently

than [the Supreme] Court on a set of materia lly indisti ng uishable fa cts.” Terry W illiams v. Taylor , 529 U.S. 362, 413 (2000). A state court de cision results in an unre asonable application of c lear ly

established fe dera l law “if the state cour t corre ctly

identifies the g overning leg al principle f

rom [the Supreme Court’s] decisions but unreasonably applies it to the fac ts of the par ticular c ase.” Bell v. Cone , 535 U.S. 685, 694 (2002). F or a state court de cision to violate this provision, it must be “objec tively unrea sonable.” Id. “[A]n unreasonable a pplication is differe nt from an incor rec t one,” a

nd the fe dera l habea s court may not substit ute its judgment for that of the state c ourt. Id. For

a fe dera l habea s court to satisfy the standar d set by

AEDPA, the state’s de cision must be “so clea rly incorre ct that it would not be debata ble among rea sonable jurists.” Herbe rt v. Billy , 160 F.3d 1131, 1135 ( 6th Cir. 1998) (quoting Drinkard v. J ohnson , 97 F.3d 751, 769 ( 5th Cir. 1996)). Jack son v. Virginia , 443 U.S. 307 (1979), sets for th the standard for r eviewing the suffic iency of the e vidence in support of a c onviction. Id. at 318. “[T]he rele vant question is whether , afte r viewing the evidenc e in the lig ht most favorable to the prosec ution, anyrational trier of fa ct could have found the e ssential elements of the crime be y ond

a re asonable doubt.” Id. at 319 (e mphasis in origina l).

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This means that in AEDPA suff iciency -of- the-e vidence case s there is “ double” de fer ence . Habe as re lief re quires us to deter mine that the state c ourt’s application of the defe rential Jack son standard w as itself unre asonable . The Te nnessee court wa s not unreasona ble in concluding that the co- tenant uncle had the r ight to kee p an ar med intruder f

rom taking his nephew’ s stereo. The district cour

t’s judgme nt deny ing ha

beas c orpus re lief is aff

irmed.

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