Bush v. People of The State of New York
- Laura Swain
- 1:22-cv-03045
- U.S. District Court · Southern District of New York
- 20
In Bush v. People, Judge Swain ordered Steven Bush to amend his federal challenge because he had not shown that he exhausted New York remedies.
Steven Bush’s federal challenge to his New York conviction was not decided on the merits. He was given 60 days to file an amended petition addressing exhaustion and other required information; the respondent was not ordered to respond at this stage.
What happened
In Bush v. People of the State of New York, Steven Bush challenged his New York conviction in a federal petition. He was convicted of attempted first-degree assault and second-degree criminal possession of a weapon and received concurrent 12-year prison sentences.
Bush raised claims including actual innocence, insufficient proof, violation of his right to confront the alleged victim, and denial of a fair trial. He acknowledged that most of these claims had not been presented to the New York courts, and he did not seek review by New York’s highest court.
Judge Laura Taylor Swain ordered Bush to file an amended petition within 60 days explaining his claims and showing that he had fully pursued available state remedies. The court did not decide whether his constitutional claims were valid; it stated that the petition would be denied if he failed to comply without showing good cause.
The detailed version
- Bush v. People of The State of New York · No. 1:22-cv-03045
- Laura Swain
- May 2, 2022
Background
Steven Bush, who was incarcerated at Auburn Correctional Facility and represented himself, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. This is a request for a federal court to review whether a state prisoner is being held in violation of federal law or the Constitution. Bush challenged his September 5, 2019, New York Supreme Court conviction. After a jury trial, he had been convicted of attempted assault in the first degree and criminal possession of a weapon in the second degree and sentenced to concurrent terms of 12 years’ imprisonment.
Bush appealed, and the New York Supreme Court, Appellate Division, First Department affirmed the conviction on December 22, 2020. He did not seek further review in the New York Court of Appeals. The opinion notes that Bush stated his appeal was denied on December 22, 2021, but the court identified December 22, 2020, as the date of the Appellate Division decision.
Claims and Exhaustion Requirement
The court discerned four grounds in Bush’s petition: actual innocence; failure by the government to prove all elements of the offenses; violation of his Sixth Amendment right to confront the alleged victim; and violation of his Fourteenth Amendment right to a fair trial. Bush also repeatedly alleged that his appellate lawyer provided ineffective assistance by not allowing him to review the appellate brief before filing and by failing to address or properly review some grounds. However, he did not list ineffective assistance of appellate counsel as a separate ground for relief.
The court explained that a state prisoner generally must exhaust available state remedies before seeking federal review. Exhaustion requires presenting the factual and legal basis of each federal claim through the state’s established review process, including review by the New York Court of Appeals when available. The court stated that Bush’s petition did not show complete exhaustion of any identified ground. Bush acknowledged that most grounds were not presented to the state courts, and he stated that he presented only one of the four discerned grounds to the Appellate Division and did not seek review of that ground in the Court of Appeals.
Ruling
The court granted Bush leave to file an amended petition within 60 days of the order. The amended petition must clearly identify every ground for relief, provide supporting facts, and describe the steps taken to exhaust the claims in New York courts. The amended petition will replace the original petition. After filing, the court will review it for substantive sufficiency, and, if sufficient, the case will be reassigned to another district judge under the Clerk’s Office procedures.
The court directed that the amended filing be captioned “Amended Petition” and use the same docket number. If Bush does not comply within the permitted time and cannot show good cause for the failure, the petition will be denied. The court also stated that no certificate of appealability would issue because Bush had not made a substantial showing that a constitutional right was denied, and it denied his ability to proceed without prepaying fees for an appeal because an appeal would not be taken in good faith.
Read the full 20-page opinion on CourtListener, the free public archive maintained by the Free Law Project.