De-Jesus v. Premo, 031319 FED9, 18-35054

Docket Nº:18-35054
Party Name:DANIEL L. DE-JESUS, Petitioner-Appellant, v. JEFF PREMO, Superintendent; OREGON STATE PENITENTIARY, Respondents-Appellees.
Judge Panel:Before: GRABER and BERZON, Circuit Judges, and ROBRENO, District Judge.
Case Date:March 13, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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DANIEL L. DE-JESUS, Petitioner-Appellant,

v.

JEFF PREMO, Superintendent; OREGON STATE PENITENTIARY, Respondents-Appellees.

No. 18-35054

United States Court of Appeals, Ninth Circuit

March 13, 2019

NOT FOR PUBLICATION

Argued and Submitted March 8, 2019 Portland, Oregon

Appeal from the United States District Court for the District of Oregon D.C. No. 6:16-cv-01563-SI Michael H. Simon, District Judge, Presiding

Before: GRABER and BERZON, Circuit Judges, and ROBRENO, [**] District Judge.

MEMORANDUM [*]

At Daniel De-Jesus's state trial for robbery and possession and delivery of methamphetamine, his attorney did not object to two jury instructions. One concerned the definition of delivery; the other was the uniform "natural and probable consequences" instruction, which the Oregon Supreme Court later held misstated state law, State v. Lopez-Minjarez, 260 P.3d 439, 583-84 (Or. 2011). In his federal habeas petition, De-Jesus contends that these failures to object constitute ineffective assistance of counsel. The district court denied the petition, and we affirm.

1.The delivery instruction ran afoul of Sandstrom v. Montana, 442 U.S. 510 (1979), with respect to the "substantial step" element but not as to intent. Given the available evidence that De-Jesus repackaged the stolen methamphetamine in a manner consistent with delivery, counsel's failure to object to the "substantial step" instruction was not reasonably likely to have influenced the verdict. The Oregon courts therefore permissibly ruled that De-Jesus did not establish ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

2.The erroneous "natural and probable consequences" instruction was irrelevant to the crimes charged and therefore harmless. Lopez-Minjarez clarified that that instruction could result in harm only where two crimes occurred in succession, so the jury might improperly have found a defendant guilty of the second crime because the defendant intended to aid and abet the first crime. 260 P.3d at 444-45. The...

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