                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0253n.06
                              Filed: May 9, 2008

                                            No. 07-1161

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


GEORGE LUIS DEJESUS,                                      )
                                                          )        ON APPEAL FROM THE
       Petitioner-Appellant,                              )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
v.                                                        )        DISTRICT OF MICHIGAN
                                                          )
BLAINE C. LAFLER, Warden                                  )                           OPINION
                                                          )
       Respondent-Appellee.                               )



BEFORE:        GUY, SUHRHEINRICH, and COLE, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. On December 11, 1997, a Michigan jury found

Petitioner-Appellant George Luis DeJesus and his brother Melvin DeJesus guilty of premeditated

murder, felony murder, criminal sexual conduct in the first degree, and three counts of possession

of a firearm during the commission of a felony. The trial court vacated the first-degree murder

conviction and one felony firearm conviction, then sentenced DeJesus to concurrent life terms for

the murder and criminal sexual conduct convictions and two years each on the two felony firearm

convictions.

       On direct appeal, the Michigan Court of Appeals vacated DeJesus’s criminal sexual conduct

conviction and the related felony firearm conviction, and corrected the judgment to reflect one first-

degree murder conviction supported by two theories and one count of felony firearm. On May 31,

2000, the Michigan Supreme Court denied DeJesus’s application for leave to appeal.
No. 07-1161
DeJesus v. Lafler

       After exhausting his remaining remedies in state court, on April 26, 2004, DeJesus filed a

petition for writ of habeas corpus in the United States District Court for the Eastern District of

Michigan, raising various grounds for relief. On December 20, 2006, the district court issued an

order denying the petition. DeJesus v. Lafler, No. 04-CV-71553-DT, 2006 WL 3759911 (E.D. Mich.

Dec. 20, 2006).

       A certificate of appealability was granted on the following five issues: (1) whether the state

trial court deprived petitioner of his due process rights to a fair trial by permitting the prosecution

to present a photograph of DeJesus holding two guns; (2) whether the state trial court deprived

DeJesus of his due process rights to a fair trial by permitting the prosecution to present gruesome

photographs of the victim; (3) whether the state prosecutor’s repeated misconduct was so egregious

that it wholly undermined the trial, rendered the verdict unreliable, and deprived DeJesus of due

process and an impartial trial by jury as guaranteed by the Fifth and Fourteenth Amendments; (4)

whether DeJesus was denied his constitutional right to due process when the trial court denied the

motion for directed verdict on the ground that there was insufficient evidence to support the

convictions; and (5) whether the Michigan state courts denied DeJesus due process by (A) refusing

to provide available DNA biological samples for independent testing and (B) in failing to conduct

a hearing with respect to a post-appeal expert forensic scientist’s report disputing the State’s

evidence on the critical element of the murder charge, after refusing to appoint an expert at trial.

       Having had the benefit of oral argument and after carefully considering the record on appeal,

the briefs of the parties, and the applicable law, we are not persuaded that the district court erred in

denying DeJesus’s petition. Since the reasoning which supports the denial of the petition has been

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DeJesus v. Lafler

aptly articulated by the district court, the issuance of a detailed written opinion by this Court would

be unnecessarily duplicative and would serve no useful purpose. Accordingly, the decision of the

Honorable George C. Steeh, district judge for the Eastern District of Michigan, is affirmed upon the

grounds stated by that court in its Opinion and Order dated December 20, 2006.

       In adopting the district court’s opinion below, we note one minor caveat. Prior to the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, the Supreme

Court articulated two harmless-error standards. On direct review, “before a federal constitutional

error can be held harmless, the court must be able to declare a belief that it was harmless beyond a

reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). On collateral review, a more

state-friendly standard prevailed: courts should consider an error to be harmless unless the error

“‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

       As the district court recognized, DeJesus’s grounds for relief were subject to harmless-error

analysis. Applying the then-controlling decision of Eddleman v. McKee, 471 F.3d 576, 585 (6th Cir.

2005), the district court found that “[w]hen a state court has found an error to be harmless, a federal

habeas court must apply the deference due under 28 U.S.C. § 2254(d) and ask whether the state

court’s harmless-error decision was contrary to, or an unreasonable application of, Chapman.”

DeJesus, 2006 WL 3759911, at *5.

       However, while DeJesus’s appeal was pending, the Supreme Court in Fry v. Pliler, 127 S.Ct.

2321 (2007), unanimously rejected this approach and specified the current test. The Fry Court held

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DeJesus v. Lafler

that a federal habeas court “must assess the prejudicial impact of constitutional error in a state-court

criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht, whether or not

the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless

beyond a reasonable doubt’ standard set forth in Chapman.” Id. at 2328 (citations omitted).

Accordingly, the proper inquiry at all times is to ask whether the constitutional violation “‘had

substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, 507 U.S. at

623 (quoting Kotteakos, 328 U.S. at 776).

       Applying Brecht’s more state-deferential harmless-error standard, and for the reasons

identified by the district court, we cannot say that DeJesus has raised any ground entitling him to

relief. Accordingly, we AFFIRM the judgment rendered by the district court.




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