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Bush v. Kirkpatrick

January 28, 2010

STEVEN D. BUSH, JR., PETITIONER,
v.
ROBERT A. KIRKPATRICK, RESPONDENT.



The opinion of the court was delivered by: Hon. Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner, Steven D. Bush, Jr. ("Petitioner"), has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered February 11, 2002, in New York State, County Court, Chautauqua County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 120.20), and Robbery in the Second Degree (Penal Law § 120.10[1]).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

On the night of December 7, 2000, Petitioner and Nick Osman ("Osman") called a cab to pick them up from Petitioner's house, where they had been drinking beer and playing cards. Trial Transcript [T.T.] 38-42, 59-62, 983-85. During the cab ride, Petitioner and Osman attacked the cab driver, punching him repeatedly in the head. The cab driver jumped out of the cab and ran into the woods. T.T. 97-98, 101, 107-14. Petitioner began driving the cab, while Osman rode in the passenger's seat. It was snowing heavily that night, and Petitioner lost control of the cab, causing it to veer into a ditch. Petitioner and Osman got out of the cab and stood on the side of the road, drinking beer. Another car approached and when the driver, Robert Olds ("Olds" or "the victim"), stopped and rolled down his window, Osman began punching him in the face. Olds attempted to drive away, but his car spun out of control and landed in the ditch on the opposite side of the road. Petitioner and Osman followed the car, began screaming at Olds, resumed punching Olds, and attempted to pull Olds from his car. Once Olds was out of the car, Petitioner and Osman beat him to death with a tree branch. Petitioner and Osman then fled the scene and were apprehended by police the following day. While in police custody, Petitioner gave a statement to police, wherein he recounted the events of December 7, 2000, but indicated that he did not intend to kill Olds. T.T. 370-89, 422-29.

Petitioner and Osman were charged by a Chautauqua County Grand Jury with Murder in the Second Degree and Robbery in the Second Degree. Petitioner and Osman were tried separately.

Prior to trial, Petitioner moved to suppress the statements he made to police following his arrest. A pre-trial Huntley*fn1 hearing was held on November 27, 2001. The trial court denied Petitioner's motion. Hearing Minutes [H.M.] of 11/27/01, 55-56.

On December 4, 2001, a jury trial was held before Justice John T. Ward, and Petitioner was found guilty as charged.

Petitioner appealed his judgment of conviction to the

Appellate Division, Fourth Department, which was unanimously affirmed. People v. Bush, 23 A.D.3d 1066 (4th Dep't. 2005). Leave to appeal to the New York State Court of Appeals was denied. People v. Bush, 6 N.Y.3d 752 (2005).

No post-conviction motions were filed.

This habeas corpus petition followed.

III. General Principles Applicable to ...


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