United States Court of Appeals,
Eleventh Circuit.
No. 95-5375.
Non-Argument Calendar.
Theodore WILLIAMS, Petitioner-Appellant,
v.
Harry K. SINGLETARY, Respondent-Appellee.
July 29, 1997.
Appeal from the United States District Court for the Southern District of Florida (No. 91-8542-CV-
NCR), Norman C. Roettger, Jr., Judge.
Before ANDERSON, BLACK and CARNES, Circuit Judges.
ON SUGGESTION FOR REHEARING EN BANC
PER CURIAM.
As no member of this panel, nor any other judge in regular active service on this Court, has
requested that this Court be polled on rehearing en banc (Rule 35, Fed.R.App.P.; 11th Cir. Rule 35-
5), the suggestion of rehearing en banc is DENIED. However, the panel modifies its original panel
opinion, published at 114 F.3d 177 (11th Cir.1997), into two respects. First, we delete the second
paragraph before the conclusion (which begins "The error in Williams' reasoning ..."). Second, we
add the following paragraph to our discussion.
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.