FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY PAUL COLLINS,
Petitioner-Appellant, No. 08-17299
v. D.C. No.
D.L. RUNNELS, Warden; ATTORNEY 2:04-cv-01516 JKS
GENERAL OF THE STATE OF GGH
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
6759
COLLINS v. RUNNELS 6761
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 rob-
bery. 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 bind-
ing 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.
6762 COLLINS v. RUNNELS
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 evi-
dent that they intended to present mutually antagonistic
defenses. Collins planned to present an alibi defense attempt-
ing 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 pol-
icy 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. Ander-
son testified on his own behalf, corroborating James M.’s tes-
timony regarding Collins’ involvement in the robbery and
asserting his own duress defense. Nonetheless, Collins pre-
sented an alibi defense. At the conclusion of the trial, the
court instructed the jury to consider Anderson’s testimony
COLLINS v. RUNNELS 6763
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 con-
cluded 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 prejudi-
cial. The Court of Appeal held that neither California nor fed-
eral 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, demon-
strating 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
1
Anderson was later convicted on the same charges at a retrial.
6764 COLLINS v. RUNNELS
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 sever-
ance 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 convinc-
ing 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.
COLLINS v. RUNNELS 6765
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 Cali-
fornia, 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 sever-
ance 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 dis-
cussing 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 proce-
dural rules and preferences for joint trials. In particular, the
2
Courts 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 exclu-
sive . . . 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 Col-
lins relies, uses the term “mutually antagonistic,” so will we as well, but
the distinction makes no difference for purposes of our AEDPA inquiry.
6766 COLLINS v. RUNNELS
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 defen-
dant or the government is prejudiced by a joinder of . . .
defendants . . for trial together, the court may order an elec-
tion or separate trials of counts, grant a severance of defen-
dants, or provide whatever other relief justice requires.” Id. at
538.3 Petitioners argued that this language mandates sever-
ance 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 discre-
tion.” 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
3
The 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.
COLLINS v. RUNNELS 6767
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 refus-
ing 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 applica-
ble 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 mark-
edly different degrees of culpability, cases where evidence is
probative of a defendant’s guilt, but technically only admissi-
ble against a codefendant, and cases where essential exculpa-
tory evidence that would be available to one defendant if tried
alone is unavailable in a joint trial. Id. None of these situa-
tions 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
6768 COLLINS v. RUNNELS
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 princi-
ples 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’ argu-
ment 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 bind-
ing on the states requiring severance in cases where defen-
dants 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
COLLINS v. RUNNELS 6769
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.