Daniel L. De-Jesus v. JEFF PREMO, Superintendent; OREGON STATE PENITENTIARY

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL L. DE-JESUS,
Petitioner-Appellant,
v.
JEFF PREMO, Superintendent; OREGON
STATE PENITENTIARY,
Respondents-Appellees.
No. 18-35054
D.C. No. 6:16-cv-01563-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 8, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.
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
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
MAR 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 district court correctly noted that, in De-Jesus’s case, “no
crime preceded the robbery.” Accordingly, “the jury could not have found the

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[robbery] to have been a natural and probable consequence of an earlier crime that
defendant had aided in committing, because there was no earlier crime in the
sequence of charged criminal acts. Necessarily, then, the instruction was harmless .
. . .” Id. at 455. A fairminded jurist could not fault defense counsel for not
objecting to a uniform instruction that had no bearing on her client’s case. See
Harrington v. Richter, 562 U.S. 86, 99, 101-102 (2011). The Oregon courts’ denial
of De-Jesus’s second ineffective assistance claim was therefore not unreasonable.
AFFIRMED.

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