Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 18, 2017 at Knoxville
from the Circuit Court for Rutherford County No. F-50300B
David M. Bragg, Judge
Appellant, Rafael Antonio Bush, appeals as of right from the
Rutherford County Circuit Court's summary denial of his
Tennessee Rule of Criminal Procedure 36.1 motion to correct
an illegal sentence. The gravamen of the Appellant's
complaint is that the trial court improperly enhanced his
sentences based upon judicially determined facts in violation
of Blakely v. Washington, 542 U.S. 296 (2004).
Following our review, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Antonio Bush, Only, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; and Jennings
H. Jones, District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
case arises from five men breaking into the home of Pascual
Lopez-Blacos, an undocumented immigrant, demanding money from
him, and shooting him in the leg. State v. Rafael Antonio
Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755, at *1
(Tenn. Crim. App. Apr. 14, 2004), perm. app. denied
(Tenn. Oct. 4, 2004). For his participation in these acts, a
Rutherford County jury convicted the Appellant of especially
aggravated robbery, a Class A felony; aggravated burglary, a
Class C felony; and aggravated assault, a Class C felony.
Tenn. Code Ann. §§ 39-13-102, -13-403, -14-403.
trial court sentenced him as a Range I, standard 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. In determining the
length of the Appellant's various sentences, the trial
court applied four enhancement factors: (1) the defendant had
a history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate
range; (2) the defendant was a leader in the commission of
the offense; (3) the defendant, before trial or sentencing,
failed to comply with the conditions of a sentence involving
release into the community; and (4) the defendant
"intentionally select[ed] the person against whom the
crime is committed . . . in whole or in part because of the
actor's belief or perception regarding the race,
religion, color, disability, sexual orientation, national
origin, ancestry or gender of that person[.]"
Bush, 2004 WL 794755, at *21 (citing Tenn. Code Ann.
§ 40-35-114(1), (2), (8), (22) (Supp. 2001)). The trial
court did not apply any mitigating factors. Id.
Appellant appealed to this court, arguing, among other
things, that the evidence was insufficient to
support his convictions and that his twenty-two-year sentence
for especially aggravated robbery was excessive.
Bush, 2004 WL 794755, at *5-8, *20-22. We affirmed
the Appellant's convictions and sentence. Id. at
*1, *23. In affirming enhancement of the Appellant's
twenty-two-year sentence for especially aggravated robbery,
this court reasoned as follows:
[W]e conclude that the [Appellant's] twenty-two-year
sentence for especially aggravated robbery is proper. The
[Appellant] does not argue that the trial court improperly
applied enhancement factors or that it failed to consider
applicable mitigating factors. Instead, he contends that he
should have received no more than the presumptive sentence of
twenty years because of his codefendants' involvement in
the crimes. However, given that the trial court determined
four enhancement factors applied in this case, we believe the
trial court's enhancing the sentence from twenty to
twenty-two years was justified.
Id. at *22.
the Appellant filed a petition for post-conviction relief in
May 2005, alleging that trial counsel was ineffective for
failing to request that the jury be instructed about
accomplice testimony. Rafael Antonio Bush v. State,
No. M2005-02967-CCA-R3-PC, 2006 WL 2682825, at *1 (Tenn.
Crim. App. Sept. 7, 2006), perm. app. denied (Tenn.
Dec. 27, 2006). After a hearing, the Appellant was denied
relief, and this court affirmed the post-conviction
court's judgment. Id.
the Appellant filed a petition seeking habeas corpus relief
in federal court on May 24, 2007. Antonio Bush v. Stephen
Dotson, Warden, No. 3:07-00630, 2010 WL 3211464, at *1
(M.D. Tenn. Aug. 11, 2010), aff'd, 508
F.App'x 472 (6th Cir. 2012). In his habeas petition, the
Appellant made the following allegations: (1) the State
knowingly presented false testimony by two witnesses; (2) the
State withheld exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963); (3) his sentences were
improperly enhanced based on facts not found by a jury; (4)
he was denied the effective assistance of counsel; (5) he was
denied due process when the state court allowed testimony
about his alleged prior bad acts unrelated to the case; and
(6) the evidence at trial was insufficient to support a
conviction. Id. However, the Appellant, in his
motion for summary judgment, limited his argument to a
challenge of the sufficiency of the evidence supporting his
especially aggravated robbery conviction, and the district
court deemed his remaining claims abandoned. Id. at
*1, *7. Thereafter, the district court denied the Appellant
relief, concluding that the "Tennessee Court of Criminal
Appeals reasonably concluded that Lopez-Blacos constructively
possessed the property taken by [the Appellant] while
Lopez-Blacos was in [the Appellant's] custody."
Id. at * 10. The Sixth Circuit affirmed the district
court's denial of habeas corpus relief. 508 F.App'x
at 473, 476.
April 24, 2014, the Appellant filed a motion to reopen his
state court post-conviction petition "pursuant [to]
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." State v. Rafael
Antonio Bush, No. M2014-01193-CCA-R3-CD, 2014 WL
7204637, at *1 (Tenn. Crim. App. Dec. 18, 2104), perm.
app. denied (Tenn. Mar. 12, 2015). The post-conviction
court issued an order on May 8, 2014, denying the
Appellant's motion to reopen as follows:
The [Appellant], 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
[Appellant's] petition for post conviction relief.
Therefore, the motion is DENIED.
Pursuant to T.C.A. § 40-30[-]117(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 be filed within one year of the
ruling of the highest state appellate court or U.S. Supreme
The [Appellant] relies upon Rule 36.1 and the rulings in
Apprendi v. New Jersey, 530 U.S. 466 (2000),
Cunningham v. California, [549 U.S. 270] (2007), and
State v. Gomez, 239 S.W.3d 733, 736 (Tenn. 2007).
The [Appellant] asserts that those cases state that the
federal constitution's jury trial guarantee proscribes a
sentencing scheme that allows a judge to impose a sentence
above the statutory maximum, ...