Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Circuit Court for Rutherford County Nos. F57073, F50300B David M. Bragg, Judge
Rafael Antonio Bush, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and John Everett Williams, J., joined.
ROBERT W. WEDEMEYER, JUDGE
A. Facts at Trial
This case arises from five men breaking into the home of Pascual Lopez-Blacos, demanding money from him, and shooting him in the leg. Bush, 2004 WL 794755, at * 1. After a trial on the charges, a Rutherford County jury convicted the Petitioner of especially aggravated robbery, a Class A felony; aggravated burglary, a Class C felony; and aggravated assault, a Class C felony. The trial court sentenced him as a violent offender to twenty-two years for the robbery conviction, four years for the burglary conviction, and four years for the assault conviction, all to run concurrently. This Court affirmed the Petitioner's convictions and sentence on April 14, 2004. Id.
B. Post-Conviction Petition
The Petitioner filed a petition for post-conviction relief on May 11, 2005, alleging that at trial he had received the ineffective assistance of counsel. He asserted that his trial counsel was ineffective for failing to request that the jury be instructed about accomplice testimony. After a hearing, the trial court denied the Petitioner relief and this Court affirmed the post-conviction court's judgment. Bush, 2006 WL 2682825 at *1.
On April 24, 2014, the Petitioner filed a motion to reopen his post-conviction petition, "pursuant T.C.A. § 40-30-117(a)(1), § 40-35-401 (Appeal of Sentence) and Rule 36.1 to Correct the Illegal Sentence imposed upon him on December 13, 2001 by the Circuit Court for Rutherford County, Tennessee." On May 8, 2014, the post-conviction court issued an order denying the Petitioner's motion to reopen as follows:
The Petitioner, Antonio Bush, filed a pro se Motion to Reopen Petition for Post Conviction Relief Pursuant to 36.1 Correction of Illegal Sentence on April 24, 2014. The motion is based on the allegation that under T.C.A. 40-30-1 he is entitled to have his petition reopened based on what he claims is an illegal sentence. The court finds that there are not new constitutional grounds to reopen the petitioners petition for post conviction relief. Therefore, the motion is DENIED.
Pursuant to T.C.A. § 40-30117(a), a court may reopen a petitioner [sic] for post conviction relief if the petition was based upon a final ruling of the highest state appellate court or the United States Supreme Court that established a constitutional right that was not recognized at the time of trial and retrospective application of that right is required. The motion must ...