Bush v. Smith

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Wilhelmina M. Wright on 01/24/2018. (TJB) Modified text on 1/24/2018 (ACH). cc: Bush

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Brandon Christopher Bush,

Case No. 17-cv-3129 (WMW/SER)
Petitioner,
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Michelle Smith,
Respondent.

This matter is before the Court on the November 22, 2017 Report and
Recommendation (R&R) of United States Magistrate Judge Steven E. Rau. (Dkt. 11.)
The R&R recommends that Petitioner Brandon Christopher Bush’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 be denied as procedurally defaulted and that
no certificate of appealability be issued. Bush timely objected to the R&R. Because
Bush fails to demonstrate cause for his procedural default or that the failure to consider
his claim is a fundamental injustice, the Court overrules Bush’s objection and adopts the
R&R.
Bush’s habeas petition alleges that his underlying state conviction violated the
rights guaranteed to him by the United States Constitution because the state court’s jury
instructions contained numerous alleged errors. Because Bush failed to assert in the trial
court his challenge to the jury instructions, however, the Minnesota Court of Appeals
reviewed Bush’s arguments for plain error and affirmed his conviction. State v. Bush,
A16-0430, 2017 WL 958472, at *4 (Minn. Ct. App. Mar. 13, 2017), rev. denied (Minn.
May 30, 2017). For this reason, the R&R determines that Bush procedurally defaulted

the constitutional claims underlying his habeas petition. See Clark v. Bertsch, 780 F.3d
873, 874 (8th Cir. 2015) (holding federal habeas claim procedurally defaulted when state
appellate court reviewed claim for plain error after petitioner failed to assert objection
during underlying trial). Because Bush does not demonstrate cause for the procedural
default or that the failure to consider his petition would result in a fundamental
miscarriage of justice, the R&R recommends denying Bush’s petition. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (explaining that a petitioner may overcome a
procedural default by demonstrating “cause for the default and actual prejudice as a result
of the alleged violation of federal law” or “that failure to consider the claims will result in
a fundamental miscarriage of justice”).
Bush objects to the R&R’s recommendation to deny his habeas petition as
procedurally defaulted because, Bush contends, any procedural default should be excused.
The Court reviews Bush’s objection de novo. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(3); LR 72.2(b)(3); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per
curiam). When liberally construed, Bush’s argument is that his state-appointed counsel’s
failure to object to the allegedly erroneous jury instructions constitutes ineffective
assistance of counsel and demonstrates cause for any procedural default. See Williams v.
Carter, 10 F.3d 563, 567 (8th Cir. 1993) (noting that pro se filings should be liberally
construed to avoid losing meritorious claims through inadvertence or misunderstanding).
But a claim of ineffective assistance of counsel is procedurally defaulted when it is not
made during state proceedings; and the claim cannot be revived unless it is independently
justified.

Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

Bush’s objection is

overruled because neither Bush’s petition nor any other document in the record
2

establishes that Bush asserted a claim of ineffective assistance of counsel during his state
proceedings or explains his failure to do so.
Bush objects to no other aspects of the R&R. Therefore, the Court reviews the
remaining portions of the R&R for clear error. See Grinder, 73 F.3d at 795; see also Fed.
R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.”). Having reviewed the aspects of the R&R to which Bush
did not object, the Court finds no clear error.
ORDER
Based on the foregoing analysis, the R&R, and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
1.

Petitioner Brandon Christopher Bush’s objection to the R&R, (Dkt. 12), is

OVERRULED;
2.

The November 22, 2017 R&R, (Dkt. 11), is ADOPTED;

3.

Petitioner Brandon Christopher Bush’s Petition under 28 U.S.C. § 2254 for

Writ of Habeas Corpus, (Dkt. 1), is DENIED;
4.

This action is DISMISSED WITH PREJUDICE; and

5.

The Court declines to grant a Certificate of Appealability under 28 U.S.C.

§ 2253(c).
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: January 24, 2018

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

3