Donald C. McCary v. VIRGINIA LEWIS, Warden

The Honorable C. Roger Vinson, Senior United States District Judge for the Northern*
District of Florida, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0804n.06
Filed: November 15, 2007
No. 05-5684
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DONALD C. MCCARY,
Petitioner-Appellant,
v.
VIRGINIA LEWIS, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: DAUGHTREY and COOK, Circuit Judges; and VINSON, District Judge.*
PER CURIAM. Donald C. McCary appeals the district court’s order denying his petition for
habeas corpus relief grounded on the prosecutor’s references to religion during closing argument.
Giving that decision fresh review, Joseph v. Coyle, 469 F.3d 441, 469 (6th Cir. 2006), having had
the benefit of oral argument, and having studied the record on appeal and the parties’ briefs, we are
not persuaded that the district court erred in denying McCary’s petition. Because the reasons for
denying the petition have been fully articulated by the district court, the issuance of a detailed
opinion by this court would be duplicative and serve no useful purpose. Accordingly, we affirm the
district court’s judgment upon the reasoning set out by that court in its order dated March 29, 2005,

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but with the following brief discussion amending the district court’s opinion as to the appropriate
standard for assessing harmless error.
As the district court recognized, prosecutorial misconduct is subject to harmless-error
analysis on federal habeas review. Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002); Pritchett
v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997). “The relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)).
Prior to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the Supreme Court
articulated two harmless-error standards. Wilson v. Mitchell, 498 F.3d 491, 502 (6th Cir. 2007). 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 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)).
Congress complicated this dichotomy when it enacted AEDPA because AEDPA dictates that
federal courts shall not grant habeas relief unless the state-court decision was either (1) contrary to,
or involved an unreasonable application of, clearly established federal law as determined by the

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No. 05-5684
McCary v. Lewis
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Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence
presented to the state courts. Wilson, 498 F.3d at 502 (quotation marks omitted); see also 28 U.S.C.
§ 2254(d). Post-AEDPA, we continued to apply only the Brecht standard, reasoning that if a
petitioner satisfies that standard, “he will surely have demonstrated that the state court’s finding that
the error was harmless beyond a reasonable doubt . . . resulted from an unreasonable application of
Chapman.” Nevers v. Killinger, 169 F.3d 352, 371–72 (6th Cir. 1999). Revisiting the standard
following the Supreme Court’s decision in Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam),
which suggested that courts should apply only the Chapman-plus-AEDPA-deference standard of
review, we again altered our view of the proper inquiry. We decided in Eddleman v. McKee, 471
F.3d 576, 585 (6th Cir. 2006), to ask whether the state court’s harmless-error decision “was contrary
to, or an unreasonable application of, Chapman.”
While McCary’s appeal was pending, the Supreme Court in Fry v. Pliler, 127 S. Ct. 2321
(2007), unanimously rejected this altered approach and specified the proper test. The Fry Court held
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, we now 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).

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Applying Brecht’s more state-deferential harmless-error standard, and for the reasons
identified by the district court, we cannot say that the prosecutor’s improper remarks “‘had
substantial and injurious effect or influence in determining the jury’s verdict.’” Id. (quoting
Kotteakos, 328 U.S. at 776).
We accordingly affirm.

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