FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNNY PAUL COLLINS, 

Petitioner-Appellant, No. 08-17299

v. D.C. No.  2:04-cv-01516 JKS D.L. RUNNELS, Warden; ATTORNEY

GGH GENERAL OF THE STATE OF

CALIFORNIA, OPINION

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, Senior District Judge, Presiding

Argued and Submitted

January 13, 2010—San Francisco, California

Filed May 5, 2010

Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Hug

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COUNSEL

Fay Arfa, Los Angeles, California, for the appellant.

David Andrew Eldridge and Justain Riley, Deputy Attorneys

General, Sacramento, California, for the appellees.

OPINION

HUG, Circuit Judge:

Johnny Paul Collins appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition challenging his

jury conviction of first degree murder and second degree robbery. Collins was sentenced to life without the possibility of

parole in a California state court. The central issue on appeal

is whether clearly established Supreme Court precedent binding on the states requires trial severance where a co-defendant

presents a mutually antagonistic defense. We hold that the

cases upon which Collins relies for this argument do not bind

the states, so the decision of the California Court of Appeal

was not contrary to or an unreasonable application of clearly

established federal law as determined by the Supreme Court.

Accordingly, we affirm the district court’s denial of the writ

of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 1998, Robert Yee and his wife, Sim Yee,

were robbed while closing their convenience market in Rio

Linda, California. They were forced to lie down after which

their hands and feet were tied and duct tape was placed over

their mouths. Mr. Yee was kicked and hit on the head with a

heavy object, but nevertheless managed to free himself and

summon help. Mrs. Yee, who suffered from impaired lungs

and an enlarged heart, died.

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Investigators identified Collins, Shaun Anderson, and

James M. as the suspected robbers. James M. confessed to the

robbery and agreed to testify against his co-defendants in

exchange for a deal permitting him to plead guilty to murder

as a juvenile. Collins and Anderson were jointly charged with

robbery and first degree murder. Before trial, it became evident that they intended to present mutually antagonistic

defenses. Collins planned to present an alibi defense attempting to show that he was on the telephone with his brother at

the time of the robbery. Anderson intended to present a duress

defense claiming that Collins had coerced him and James M.

into participating in the robbery. Collins moved to have his

case severed from that against Anderson, arguing that a jury

might infer that if Collins coerced Anderson into committing

the robbery, Collins must also have been part of the robbery,

thus contradicting his alibi defense. Collins also argued that

Anderson’s planned testimony regarding their prior joint

criminal activities and Collins’ alleged coercion of Anderson

would cause the jury to become unduly prejudiced against

Collins and thus more likely to find him guilty. According to

Collins, this situation would deprive him of his constitutional

rights to due process and a fair trial. The trial court recognized

the existence of some antagonism, but found that the defenses

were not so antagonistic as to render a joint trial inherently

unfair to Collins. In so finding, the trial court emphasized the

California Legislature’s preference for joint trials and the policy considerations favoring one jury hearing all issues and

finding all facts at one time. 

At trial, several witnesses were called. These included

James M., who confessed to participating with Collins in the

planning and execution of the robbery, and Vanessa H., who

also presented strong testimony incriminating Collins. Anderson testified on his own behalf, corroborating James M.’s testimony regarding Collins’ involvement in the robbery and

asserting his own duress defense. Nonetheless, Collins presented an alibi defense. At the conclusion of the trial, the

court instructed the jury to consider Anderson’s testimony

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regarding Collins’ prior coercion only as to Anderson’s state

of mind. The court also excluded evidence regarding the

defendants’ prior joint criminal acts. The jury found Collins

guilty of robbery and murder, but deadlocked on the identical

charges against Anderson.1

Collins subsequently moved for a new trial based on the

failure to sever. The trial court rejected the motion, reiterating

its previous arguments and adding that the significant amount

of evidence against Collins created a compelling case against

him even absent Anderson’s testimony. The trial court concluded that Collins could not have overcome these obstacles

even if a separate trial had been granted.

Collins appealed his conviction to the California Court of

Appeal, again asserting that the joint trial was unduly prejudicial. The Court of Appeal held that neither California nor federal law required trial severance under the circumstances and

that Collins’ due process rights had not been violated. It

explained that Collins had been able to confront Anderson’s

conflicting evidence, which would have been admissible even

if a separate trial had been granted. It further explained that

there was no indication that the joint trial induced the jury to

convict Collins without proof beyond a reasonable doubt. It

also noted that the jury deadlocked against Anderson, demonstrating that the jury had considered the charges against the

defendants separately. The Court of Appeal held that even if

the trial court’s refusal to order separate trails was error, any

error was harmless because of the overwhelming evidence

against Collins. Accordingly, the Court of Appeal affirmed

Collins’ conviction. The California Supreme Court summarily

denied review of that decision as well as of Collins’ writ of

habeas corpus repeating his prejudice arguments.

Subsequently, Collins filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 with the United States

1Anderson was later convicted on the same charges at a retrial. 

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District Court for the Eastern District of California, once

again presenting his prejudice and severance arguments. The

District Court adopted the recommendation of a magistrate

judge that Collins’ petition be denied, finding that no clearly

established federal law binding on the states requires severance of co-defendants’ trial when they present mutually

antagonistic defenses. The district court issued a Certificate of

Appealability under 28 U.S.C. § 2253(c) and Federal Rule

22(b) of Appellate Procedure. This appeal followed. We have

jurisdiction pursuant to 28 U.S.C. § 2253.

II. STANDARD OF REVIEW

We review de novo a district court’s decision to grant or

deny a habeas corpus petition under 28 U.S.C. § 2254. Yee v.

Duncan, 463 F.3d 893, 897 (9th Cir. 2006). 

Because Collins filed his habeas petition after the effective

date of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), that statute’s provisions apply and pose special

requirements. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.

2004) (en banc). Under AEDPA, we can grant relief only if

the state court’s adjudication of the merits of the case “(1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

State court findings of fact are presumed to be correct unless

the petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Woodford, 333

F.3d 982, 991 (9th Cir. 2003). In applying these standards of

review, we look to the “last reasoned decision” in the state

court system; here, the opinion of the California Court of

Appeal. Yee, 463 F.3d at 897.

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III. ANALYSIS

[1] In California, “[w]hen two or more defendants are

jointly charged with any public offense, whether felony or

misdemeanor, they must be tried jointly.” Cal. Pen. Code

§ 1098. The trial court may, however, order separate trials in

its discretion. Id. The denial of a motion to sever is, in California, reviewed for an abuse of discretion and analyzed on

the basis of the facts as they appear at the time of the hearing

on the motion to sever. People v. Boyde, 758 P.2d 25, 34 (Cal.

1988).

The California Court of Appeal held that the trial court did

not abuse its discretion in denying Collins’ motion for severance or a new trial based on the existence of Anderson’s

mutually antagonistic defense.2 In analyzing whether the trial

court should have severed the cases against Collins and

Anderson, the Court of Appeal looked to California law discussing antagonistic defenses, but finding that jurisprudence

scant, the Court of Appeal also used United States Supreme

Court precedent as an aid in interpreting California’s procedural rules and preferences for joint trials. In particular, the

2Courts use both the terms “mutually antagonistic” and “mutually

exclusive.” “Mutually exclusive defenses are said to exist when acquittal

of one codefendant would necessarily call for the conviction of the other.”

United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991) (citing

United States v. Adler, 879 F.2d 491 (9th Cir. 1988)); see also State v.

Kinkade, 680 P.2d 801, 803 (Ariz. 1986) (“defenses are mutually exclusive . . . if the jury, in order to believe the core of the evidence offered on

behalf of one defendant, must disbelieve the core of the evidence offered

on behalf of the co-defendant.”). In contrast, in the less extreme situation

where acceptance of one defense does not necessarily preclude acceptance

of the other, the term “mutually antagonistic” is used. See United States

v. Sherlock, 962 F.2d 1349, 1362-63 (9th Cir. 1992). However, many

courts use the terms interchangeably, as does Collins. See, e.g., United

States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996); People v.

Hardy, 825 P.2d 781, 844 (Cal. 1992). Because Zafiro, upon which Collins relies, uses the term “mutually antagonistic,” so will we as well, but

the distinction makes no difference for purposes of our AEDPA inquiry.

COLLINS v. RUNNELS 6765
Court of Appeal relied on Zafiro v. United States, 506 U.S.

534 (1993), in finding that neither state or federal law

required trial severance. Collins argues that the state court’s

conclusion runs afoul of the holdings in both Zafiro and

United States v. Lane, 474 U.S. 438 (1986). Collins contends

that these cases establish a constitutional standard binding on

the states and require severance in cases where defendants

present mutually antagonistic defenses. We hold that they do

not.

In Zafiro, the four petitioners were indicted on federal drug

charges and brought to trial together pursuant to Federal Rule

of Criminal Procedure 8(b). 506 U.S. at 535-36. On appeal,

petitioners invoked Federal Rule of Criminal Procedure 14,

which at the time provided that “[i]f it appears that a defendant or the government is prejudiced by a joinder of . . .

defendants . . for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.” Id. at

538.3 Petitioners argued that this language mandates severance whenever codefendants present conflicting defenses. Id.

at 538. The Court declined adopting such a bright-line rule,

holding that mutually antagonistic defenses are not prejudicial

per se. Id. Moreover, the Court concluded that Rule 14 does

not require severance even if prejudice is shown. Id. at 538-39

(emphasis added). “[R]ather, it leaves the tailoring of the

relief to be granted, if any, to the district court’s sound discretion.” Id. at 539. “[L]ess drastic measures, such as limiting

instructions, often will suffice to cure any risk of prejudice.”

Id. 

[2] First, Collins argues that Zafiro is binding on state

3The current version of the rule provides that “[i]f the joinder of

offenses or defendants in an indictment, an information, or a consolidation

for trial appears to prejudice a defendant or the government, the court may

order separate trials of counts, sever the defendants’ trials, or provide any

other relief that justice requires.” Fed. R. Crim. P. 14. 

6766 COLLINS v. RUNNELS
courts. It is not. By its own wording, Zafiro only applies to

federal and not state court trials. It analyzes only the Federal

Rules of Criminal Procedure applicable to federal district

courts. Collins’s argument thus fails. The California Court of

Appeal did not violate clearly established federal law in refusing to find that separate trials should have been granted here

merely because of the existence of antagonistic defenses.

Even if Zafiro did apply to Collins’ case, it would not

require severance on the ground that Anderson’s defense

made it more difficult for Collins to argue his innocence, as

Collins also argues. “[I]t is well settled that defendants are not

entitled to severance merely because they may have a better

chance of acquittal in separate trials.” Id. at 540.

Further, both Collins and the Court of Appeal cite to

Zafiro’s language discussing whether severance should be

granted when “there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt

or innocence.” Id. at 539. Even if this language were applicable to Collins’ state court case, Zafiro’s illustrations of when

such a serious risk might arise are inapposite to Collins’ case.

The Supreme Court stated that this risk might, for example,

be a concern in complex cases where defendants have markedly different degrees of culpability, cases where evidence is

probative of a defendant’s guilt, but technically only admissible against a codefendant, and cases where essential exculpatory evidence that would be available to one defendant if tried

alone is unavailable in a joint trial. Id. None of these situations were a concern in Collins’ case.

Collins also argues that under Lane, misjoinder rises to the

level of a constitutional violation “if it results in prejudice so

great as to deny a defendant his Fifth Amendment right to a

fair trial.” Lane, 474 U.S. at 446 n.8. According to Collins,

the prejudice rose to that level in his case because Anderson’s

COLLINS v. RUNNELS 6767
defense had a substantial and highly injurious effect on the

jury in determining its verdict. 

The language upon which Collins refers is dicta. Lane dealt

with the joinder of standards under Federal Rules of Criminal

Procedure 8 and 52; no constitutional issue was before the

Court. “[T]he phrase ‘clearly established Federal law, as

determined by the Supreme Court of the United States’ . . .

refers to the holdings, as opposed to the dicta, of this Court’s

decisions as of the time of the relevant state-court decision.”

Williams v. Taylor, 529 U.S. 362, 412 (2000) (emphasis

added). “In other words, ‘clearly established Federal law’

under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court

renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72

(2003). The footnote upon which Collins relies did not set

forth the governing legal principle in Lane. It was merely a

comment.

When the Supreme Court does not purport to interpret any

provision of the Constitution, then “[t]hat alone would be

enough to defeat a claim that [the] application [of the case] to

state-court proceedings is ‘clearly established.’ ” Early v.

Packer, 537 U.S. 3, 10 (2002) (per curiam). Here, Lane

expressly stated that “[i]mproper joinder does not, in itself,

violate the Constitution.” 474 U.S. at 446 n.8. Collins’ argument that Lane applies to state courts fails for that reason as

well.

[3] In sum, we hold that neither Zafiro v. United States nor

United States v. Lane establish a constitutional standard binding on the states requiring severance in cases where defendants present mutually antagonistic defenses.

IV. CONCLUSION

[4] We conclude that the decision of the California Court

of Appeal was not contrary to or an unreasonable application

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of clearly established federal law as determined by the

Supreme Court. We therefore affirm the district court’s order

denying Collins’ petition for a writ of habeas corpus.

AFFIRMED.

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