United States Court of Appeals,

Eleventh Circuit

No. 95-5375

Non-Argument Calendar.

Theodore WILLIAMS, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Respondent-Appellee.

June 10, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 91-8542-CVNCR), Norman C. Roettger, Jr., Judge.

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 codefendants' 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 codefendant.

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

codefendant 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 case 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 nonsevered 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 on other grounds, 65 F.3d 878 (11th Cir.1995); 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.
The error in Williams' reasoning becomes clearer when one takes into account Smith's

application to federal criminal cases. This Court has adopted the four-step Smith analysis when

reviewing on direct appeal whether a federal district court erred in not granting a motion to sever.

United States v. Knowles, 66 F.3d 1146, 1158-59 (11th Cir.1995) (borrowing compelling prejudice

standard from Smith in direct appeal), cert. denied, --- U.S. ----, 116 S.Ct. 1449, 134 L.Ed.2d 568

(1996); United States v. Castillo-Valencia, 917 F.2d 494, 498-99 (11th Cir.1990) (borrowing Smith

four-step analysis verbatim on direct appeal of conviction). Brecht applies only to habeas review

of state convictions, so Smith's application to federal criminal cases on direct appeal remains

unchanged since Brecht. As a result, on direct appeal of a federal criminal conviction, we still must

apply the stricter compelling prejudice standard rather than the looser Brecht standard. Adopting

Williams' argument that Brecht supplanted the Smith analysis would have the effect of making relief

easier to obtain for a state defendant on collateral review than for a federal defendant on direct

review. That would turn federalism on its head. Nothing in Brecht countenances such a bizarre

result.

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 on other grounds, 51 F.3d 942 (11th Cir.), aff'd, 65 F.3d 878 (11th Cir.1995).

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 cases 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.