
    Theodore WILLIAMS, Petitioner-Appellant, v. Harry K. SINGLETARY, RespondentAppellee.
    No. 95-5375
    Non-Argument Calendar.
    United States Court of Appeals, Eleventh Circuit
    June 10, 1997.
    As Amended on Denial of Suggestion for Rehearing En Banc July 29, 1997.
    
      Kathleen Williams, Federal Public Defender, Peter V. Birch, Assistant Federal Public Defender, Brenda Bryn, Assistant Federal Public Defender, West Palm Beach, FL, for Petitioner-Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, FL, Linda Collins Hertz, Assistant U.S. Atty., Miami, FL, Melynda L. Melear, FI. Atty. General Office, West Palm Beach, FL, for Respondent-Appellee.
    Before ANDERSON, BLACK and CARNES, Circuit Judges.
   PER CURIAM:

Theodore Williams was convicted of second-degree murder and aggravated battery in the Circuit Court of Palm Beach County, Florida. After appealing his conviction in state court, he filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition, and Williams appeals.

I. FACTS AND PROCEDURAL HISTORY

On January 3, 1987, Vincent McDaniels was driving a red Mustang in Riveria Beach, Florida. Williams was the front seat passenger in the Mustang. McDaniels drove the Mustang past a group of people gathered at Monroe Heights Park. He drove past once, turned around, drove past a second time, and then stopped in an intersection. Shots were fired from the Mustang into the group. Donald Runner was shot in the head and killed, and Cedric Dunaway was injured by two shots.

Both McDaniels and Williams were arrested and charged with first degree murder and aggravated battery. Williams filed several motions to sever, both before and during trial, all of which were denied. The basis of the motions was the eodefendants’ mutually antagonistic defenses. McDaniels admitted to having a gun and firing it, but contended that it was a .38 pistol that he fired into the air. McDaniels claimed that Williams fired the 9 millimeter gun that killed Runner and injured Dunaway. Williams’ defense was that there was only one gun involved and that McDaniels fired it.

At trial, McDaniels and Williams advanced their respective defenses during opening and closing arguments and during examination of the witnesses. The eyewitnesses did little to resolve the defendants’ conflicting defenses. Those in or near the park offered inconsistent versions of the shooting. One saw only one gun, three saw two guns, and one remembered hearing three guns. The eyewitnesses also disagreed on the number of shots fired, ranging from two or three to 25 or 30. One eyewitness testified that she saw Williams leaning over shooting out of the driver’s side window while another saw Williams hanging out of the passenger’s side window. The three passengers in the back seat of the Mustang testified that there was only one gun and further testified that McDaniels was the one who fired the shots. McDaniels testified and offered his version of the shooting: Williams fired into the group while McDaniels fired into the air. Williams did not testify.

The jury convicted both McDaniels and Williams of second degree murder and aggravated assault. Williams appealed, arguing that the trial court erred in not severing his trial from McDaniels’. Williams contended that his defense and McDaniels’ defense were mutually exclusive and antagonistic. Because McDaniels’ defense was based on the theory that Williams fired the shots, Williams argued that he was in essence doubly prosecuted — by the state and by his co-defendant.

The Florida District Court of Appeals rejected Williams’ argument. Williams v. State, 567 So.2d 9 (Fla.Dist.Ct.App.1990). That court held the trial court had not abused its discretion because Williams was allowed to and did conduct lengthy cross-examination of the witnesses, including his eodefendant McDaniels. Id. at 10. Moreover, the parties had conducted extensive pretrial discovery, so Williams was not surprised by any of the testimony. Id. Nor was the evidence so complex that the jury would be confused by any conflicting defenses. Id. The Florida Supreme Court declined to accept jurisdiction. Williams v. State, 577 So.2d 1331 (Fla.1991).

Williams filed the present § 2254 petition in federal district court, raising only the issue of the state trial court’s refusal to sever Williams’ trial from McDaniels’. The district court referred the matter to a magistrate judge, who recommended that the petition be denied. The magistrate judge examined Williams’ claim under the four-step test set forth in Smith v. Kelso, 863 F.2d 1564 (11th Cir.1989), and concluded that Williams failed to meet the third step of the Smith analysis, the compelling prejudice step. Looking only at the state’s ease in chief, the magistrate judge determined that there was sufficient evidence apart from McDaniels’ defense to find Williams guilty of the shooting under the state’s aiding and abetting theory. Because Williams failed to establish that he suffered compelling prejudice from the refusal to sever, the magistrate judge recommended that the petition be denied.

The district court adopted the recommendation of the magistrate judge and denied Williams’ petition. This appeal followed.

II. ANALYSIS

A habeas petitioner seeking relief for a trial court’s refusal to sever a codefendant must show that the refusal rendered the trial fundamentally unfair. Johnson v. Dugger, 817 F.2d 726, 728 (11th Cir.1987). In Smith v. Kelso, 863 F.2d 1564 (11th Cir.1989), this Court established a four-step test for determining whether a defendant’s non-severed trial was fundamentally unfair. Courts should proceed step-by-step through the following four questions:

(1) Do the alleged conflicts with co-defendants’ defenses go to the essence of the appellant’s defense?
(2) Could the jury reasonably construct a sequence of events that accommodates the essence of both defendants’ defenses?
(3) Did the conflict subject the appellant to compelling prejudice?
(4) Could the trial judge ameliorate the prejudice?

Id. at 1568.

In examining the third step of establishing compelling prejudice, the Smith court explained, “This is essentially a requirement that the defendant prove the conflict [between the defenses] was not harmless.” Id. at 1571 (citations omitted). The court went on to hold that the defendant in Smith had not established compelling prejudice because “evidence other than [the codefendant’s] testimony was sufficient to convict.” Id. The fit between the jury’s verdict and the other evidence in Smith indicated that the jury could have convicted the defendant as it did without the codefendant’s testimony. Id. at 1571-72. Because any error resulting from the lack of severance was harmless in that sense, the defendant in Smith failed to establish compelling prejudice and thus was not entitled to habeas relief. Id.

The magistrate judge in the present case followed the Smith four-step analysis. After concluding that the defendants’ defenses were antagonistic and that the jury could not reasonably accommodate both defenses, the magistrate judge proceeded to the third step. Following Smith, the judge held that Williams had failed to establish compelling prejudice because evidence apart from that presented by McDaniels was sufficient for the jury to convict as it did.

On appeal, Williams contends that the magistrate judge applied the wrong legal standard in the third step of the Smith analysis. Williams argues that the Supreme Court effectively overruled Smith and instituted a new rule of decision in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Court in Brecht addressed the question of which harmless error standard should be applied in deciding whether to grant habeas relief for constitutional violations involving trial errors. Id. at 627, 113 S.Ct. at 1716. The Court adopted the harmless error standard of Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946), and held that a constitutional trial error is not harmless if it “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. at 1722 (citation omitted). Relying on the language in Smith explaining that compelling prejudice is essentially a question of harmfulness, Williams contends that the Brecht harmless error standard supplanted the Smith compelling prejudice inquiry.

We reject Williams’ construction of Brecht. A harmless error inquiry necessarily entails a two-step process. A court must first find an error before it can determine whether that error is harmless. Brecht applies only at the second step of the inquiry in determining if an already established error is harmless. Nothing in Brecht suggests its harmless error standard should apply at the first step of the inquiry and change what it takes to establish an error in the first place. Instead, in Brecht, the Supreme Court begins its discussion of the harmless error standard only after first determining that the state had improperly used the defendant’s post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Brecht, 507 U.S. at 627-30, 113 S.Ct. at 1716-17.

This two-step analysis complies with this Court’s precedent. We have consistently applied the Brecht harmless error standard only after determining that there was an error. See Booker v. Singletary, 90 F.3d 440, 442-43 (11th Cir.1996) (affirming prior finding of Hitchcock violation and holding that under Brecht standard, state had not established harmlessness); Delguidice v. Singletary, 84 F.3d 1359, 1364 (11th Cir.1996) (first finding Sixth Amendment error and then examining whether that error was harmless under Brecht)', Smith v. Singletary, 61 F.3d 815, 816 (11th Cir.1995) (finding Hitchcock violation, then examining whether that violation was harmless under Brecht), cert. denied, — U.S.-, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996); Horsley v. State of Ala., 45 F.3d 1486, 1492 (11th Cir.) (assuming Lockett/Hitchcock error but finding error to be harmless under Brecht), cert. denied, — U.S. -, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995); Glock v. Singletary, 36 F.3d 1014, 1022 (11th Cir.1994) (finding Bruton violation and then examining for harmlessness under Brecht), vacated 51 F.3d 942 (11th Cir.), endorsed in relevant part, 65 F.3d 878 (11th Cir.1995) (en bane); Bonner v. Holt, 26 F.3d 1081, 1082-83 (11th Cir.1994) (analyzing for harmlessness under Brecht after state conceded Sixth Amendment violation); Bolender v. Singletary, 16 F.3d 1547, 1566-67 (11th Cir.1994) (finding no Hitchcock violation but holding in the alternative that any such violation would be harmless under Brecht); Duest v. Singletary, 997 F.2d 1336, 1337 (11th Cir.1993) (engaging in Brecht harmlessness analysis after state conceded existence of Johnson violation); Cumbie v. Singletary, 991 F.2d 715, 724-25 (11th Cir.1993) (finding confrontation clause violation under Coy and then applying Brecht harmlessness standard).

Smith sets forth a methodical four-step process for determining when a refusal to sever rises to the level of a constitutional violation. A habeas petitioner must satisfy that four-step test before moving on to the Brecht harmless error standard. Nothing in Brecht purports to address when a failure to sever is a constitutional violation in the first place. We will not stretch Brecht beyond its holding, which is that the Kotteakos standard applies in determining when an already established constitutional violation nonetheless amounts to harmless error.

Williams argues for the first time on rehearing that the Smith v. Kelso, 863 F.2d 1564 (11th Cir.1989), four-step analysis for determining whether a defendant’s non-severed trial was fundamentally unfair has been supplanted by the decision in Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Williams asserts that Zafiro sets forth a new standard for determining when a refusal to sever rises to the level of prejudicial error, and that standard is to be applied by federal courts reviewing state court judgments in 28 U.S.C. § 2254 proceedings. However, Zafiro was not a habeas case. Instead, it involved a direct appeal of a federal criminal conviction in which the Supreme Court examined Rule 14, Fed. R.Crim.P., and established a standard for determining when that rule requires severance. See id. at 539, 113 S.Ct. at 938. Of course, Rule 14 does not apply to state courts, and it is not at all clear that Zafiro establishes a rule of constitutional law to be applied to state court judgments in § 2254 proceedings. We have no need to decide that issue in the present case, because Williams never made that argument in the district court; instead, he based his argument there upon the Smith standard. Nor did he make such an argument in this Court before we issued our decision.

Williams contends that this Court has already supplanted Smith’s compelling prejudice with Brecht’s harmless error standard. He says that we did so in Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), vacated 51 F.3d 942 (11th Cir.), endorsed in relevant part, 65 F.3d 878 (11th Cir.1995) (en banc). In Glock, we addressed the introduction of a codefendant’s confession in violation of Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 1627-28, 20 L.Ed.2d 476 (1968). After concluding that the introduction of the confession violated the Bruton rule, we next addressed whether that error was harmless under Brecht. Glock, 36 F.3d at 1022. Therefore, the Glock decision is but one in a long line of eases that apply Brecht after a constitutional violation has been found. Moreover, Glock mentions severance only once, in a footnote discussion of whether the failure to sever could constitute a structural error and thereby fall outside Brecht. Id. at 1022-23 n. 19. Glock in no way changes the four-step analysis for determining whether a constitutional violation relating to nonseverance has occurred under Smith.

III. CONCLUSION

Because the magistrate judge and district court applied the proper legal standard, we AFFIRM the district court’s denial of Williams’ petition for writ of habeas corpus.  