                                                                     [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                          ________________________        U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                            NOVEMBER 29, 2010
                                No. 09-15514                     JOHN LEY
                          ________________________                CLERK

                       D. C. Docket No. 92-00539-CV-EAK

CARL PUIATTI,


                                                             Petitioner-Appellee,

                                    versus


WALTER A. MCNEIL,
Secretary, Florida
Department of Corrections,


                                                          Respondent-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                             (November 29, 2010)

Before HULL, PRYOR and MARTIN, Circuit Judges.

HULL, Circuit Judge:
      Carl Puiatti, a Florida inmate under a death sentence, filed a 28 U.S.C.

§ 2254 petition for a writ of habeas corpus that challenged his convictions and

death sentence. The district court denied the petition as to Puiatti’s convictions but

vacated Puiatti’s death sentence. The district court concluded that the state trial

court’s denial of Puiatti’s motion to sever his penalty phase from his co-

defendant’s violated Puiatti’s constitutional right to an individualized

determination of sentence. The State appealed. After review and oral argument,

we reverse and remand this case with directions to consider Puiatti’s remaining

§ 2254 claims as to his death sentence.

                                I. BACKGROUND

A.    1983 Crime and Confessions

      On August 16, 1983, Puiatti and Robert Glock kidnapped, robbed, and

murdered Sharilyn Ritchie. Puiatti (age 20) and Glock (age 22) confronted Ritchie

as she got out of her car in the parking lot of a shopping mall in Bradenton,

Florida. Glock pulled out a .38 pistol and forced Ritchie into the backseat of her

car at gunpoint. Puiatti and Glock got in Ritchie’s car, Glock took $50 from

Ritchie’s purse, and Puiatti drove them to Ritchie’s bank, where they made Ritchie

cash a $100 check. Then Puiatti drove Ritchie more than 60 miles, to an orange

grove outside Dade City, Florida. Puiatti took Ritchie’s wedding ring and left her



                                           2
at the roadside.

      After driving away for a short distance, Glock said he thought they should

kill Ritchie, and Puiatti agreed. Puiatti turned the car around, and when the car

pulled abreast of Ritchie, Puiatti shot her twice from inside the car. Puiatti began

to drive away, but when Glock saw Ritchie was still standing, Puiatti handed the

gun to Glock, turned the car around, and drove by Ritchie again. Glock shot

Ritchie. When Ritchie still did not fall, Puiatti made a third pass and Glock shot

Ritchie again. Ritchie collapsed and died from her injuries.

      Four days later, on August 20, 1983, Puiatti and Glock were in Ritchie’s car

in New Jersey, with Glock driving. A state trooper stopped them because Ritchie’s

license plate was improperly displayed. Neither Puiatti nor Glock had a valid

driver’s license. When Puiatti opened the glove compartment to find the car’s

registration, the state trooper saw a handgun that was later identified as the gun

used to kill Ritchie. The state trooper searched the car and found another handgun.

He arrested Puiatti and Glock for possessing handguns without a permit. After

Puiatti and Glock were taken to the police station, police officers discovered that

the car they were driving was stolen and its owner had been murdered.

      The New Jersey State Police assigned Detective John Quinlan to interview

Puiatti and Glock. On the evening of August 20, Detective Quinlan questioned



                                           3
Puiatti and Glock for about 15 minutes each, at which time Glock admitted he had

stolen the car. On the evening of the next day, August 21, 1983, Detective

Quinlan, along with Florida detectives August Stahl and James Wiggins,

questioned the defendants again. The detectives questioned Puiatti and Glock

separately, for about an hour each. Puiatti, who was interviewed after Glock,

initially claimed Glock picked him up in Ritchie’s car to give him a ride to New

York and that Puiatti knew nothing about the theft of the car or Ritchie’s death.

After the detectives told Puiatti that Glock already gave a statement about Ritchie’s

murder, Puiatti said, “I might as well tell you,” and gave a statement about the

murder.

       Puiatti’s and Glock’s individual confessions, which they gave initially,

differed from each other in only two ways: (1) although Puiatti and Glock each

confessed to shooting Ritchie, they differed on who fired which shots at her; and

(2) they each claimed the other man instigated the killing.

      Puiatti and Glock were extradited to Florida. On August 24, 1983, Detective

Stahl asked Puiatti and Glock if they would give a joint statement confessing to

their involvement in Ritchie’s murder, and they agreed. Puiatti and Glock’s joint

confession resolved the inconsistencies in their individual confessions. Their joint

confession stated that Glock had suggested shooting Ritchie, Puiatti fired the two



                                          4
shots on the first pass, and Glock fired the shots on the second and third passes.

B.    Denial of Motions to Sever

      Before trial, Puiatti moved to sever his trial from Glock’s, arguing a joint

trial was prejudicial. Puiatti alleged that material differences existed between

Puiatti’s and Glock’s individual confessions and that a joint trial interfered

substantially with the jury’s ability to make an impartial decision as to Puiatti’s

guilt or innocence and its recommendation of a life or death sentence. Puiatti

focused on the defendants’ individual confessions and likely antagonistic defenses.

Puiatti argued that failure to sever violated the Florida Constitution and the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution.

      The state trial court denied Puiatti’s motion to sever.1 The state trial court

considered the effect of any differences in the defendants’ individual confessions

on the penalty phase and concluded any difference was clarified in their joint

confession.

C.    1984 Guilt Phase

      Puiatti’s and Glock’s trial began March 19, 1984. The State called witnesses

to testify about, among other things, the discovery of Ritchie’s body, the ensuing

police investigation, the extent of Ritchie’s injuries, the cause of her death, and the



      1
          The state trial court already had denied Glock’s earlier, independent motion to sever.

                                                  5
New Jersey traffic stop that led to Puiatti and Glock’s arrests. Detectives from

New Jersey and Florida testified that Puiatti and Glock made individual tape-

recorded statements to police, confessing their involvement in Ritchie’s murder.

The State played for the jury the tape-recorded individual confessions of Glock and

Puiatti. The state trial court instructed the jury not to consider Glock’s individual

confession as evidence against Puiatti, and vice versa.

       The State’s last witness was the court reporter who recorded and transcribed

Glock and Puiatti’s August 24, 1983 joint confession. The court reporter testified

the transcript accurately reflected the defendants’ statements and then read the joint

confession transcript into the record.

       Puiatti’s counsel renewed his motion to sever, which the state trial court

denied. The joint confession was read in open court.

       In the joint confession, Puiatti and Glock acknowledged and waived their

Miranda rights.2 Detective Stahl asked Puiatti to describe the incident:

       Now, what I want you to do is, uh, so each one of us knows what the
       other is saying, I want you to go through the whole details of the
       incident from the time it started in Fort Myers and work right back up
       to the point where you stopped on the New Jersey Turnpike in the
       State of New Jersey. Okay. When one talks and one leaves out
       something, the other one can fill in, but don’t talk at the same time.



       2
         Puiatti stated he felt “[a] little bit tired but otherwise okay” and he did not mind giving
this statement.

                                                  6
Puiatti began, describing how he and Glock kidnapped and robbed Ritchie:

      We walked to a Shop and Go Store near Bradenton and called a
      taxicab to take us to the mall. We got to the mall about 8:00 o’clock
      that morning, and, uh, hung around until it opened. And that day we
      watched a couple of movies in the mall and we were kind of looking
      around in the parking lot for a customer to come in to try to get their
      car. We had no luck that day.
             That night, later that night, we tried to hitchhike out of town
      and tried for a couple of hours, and it was about 1:00 o’clock in the
      morning and we had no luck. So there was a truck parked over by the
      mall and it was open, so we went in and slept for a few hours until that
      morning.
      ....
             Okay. The following morning, which was Tuesday, the 16th,
      we went and got something to eat. And we were getting very low on
      money, so we waited around the mall parking lot until it opened again.
      And I’m not sure of the exact time.
             Do you remember the time when she came?
      ....
             Mr. Glock: It was approximately 10:20 – 10:30.
             Mr. Puiatti: About 10:30 that morning a woman pulled into the
      mall parking lot in . . . an orange 1977 Toyota SR-5 Corolla. That’s
      what it was, Corolla.
             At that time when she pulled in she had opened the door and
      started to get out of the car, and Robert had a handbag with a .38 in it
      and went up to her, put the gun on her, and she started to scream. And
      he told her to get in the backseat.
             At that time I got in the car and started – and got behind the
      driver’s wheel and started to pull out of the mall.
             At that time Robert went through her purse and found fifty
      dollars and also found that she had a, uh, bank account. So she’s
      offering to go to her bank and withdraw some money for us, and we –
      so we went to the Palmetto Bank on Palmetto Avenue and withdrew a
      hundred dollars in four twenties and two tens. She wrote out a check,
      and we went through the drive-through and withdrew it.

      Puiatti said that he drove the car northbound until he found a dirt road

                                          7
through orange groves near Dade City, Florida. Puiatti drove the car through the

dirt road until he saw a street, then turned around and stopped the car about

halfway down the dirt road. Puiatti said they let Ritchie out of the car and, at her

request, gave Ritchie her purse and her husband’s baseball glove. They took her

wedding band and diamond ring.

      Puiatti and Glock jointly described how Glock suggested shooting Ritchie,

how Puiatti fired the first two shots, and then Glock fired the rest, as follows:

      By Detective Stahl: Question: Then what happened when you let her
      out of the car?
      Mr. Puiatti: Okay. We left her and started to take off. And as we
      were taking off, we started talking back and forth, and Robert said to
      me that he thought that we should shoot her. And after going back
      and forth a little bit, I agreed, and turned the car around.
             Then we drove up next to her and acted like we were looking
      for directions, and I shot her in the right – right by the right shoulder,
      and drove off.
             When I was driving off, Robert noticed that she was still
      standing.
             Mr. Glock: There were two shots fired at her, and then –
      interrupted –
             Mr. Puiatti: You tell it.
             Mr. Glock: When we first turned around and came back toward
      her on the first time, he shot the first time and hit her in the shoulder,
      the right shoulder, and then fired a second time. I don’t know if the
      second time he hit her or that was when he missed her and hit the tree
      or whatever.
             Mr. Puiatti: Yeah.
             Mr. Glock: I don’t know if he missed the second shot or not.
             Mr. Puiatti: Yeah. It was because – interrupted –
             By Detective Stahl: Question: You agree with that, Carl?
             Mr. Puiatti: Yeah.

                                           8
        Question: Go ahead, Bobby.
        Mr. Glock: Then we kept on driving, and I noticed that she was
still standing. Carl turned around and handed me the gun at that time
and drove back by her, and I fired a shot. No, I fired two shots at that
time.
        Mr. Puiatti: Yeah.
        Mr. Glock: I fired two shots. Uh, then we kept on driving back
by, turned around again, (pausing).
        Mr. Puiatti: Went back by again, stopped, (pausing).
        Mr. Glock: Yeah. Stopped and turned around and headed back
toward her.
        Mr. Puiatti: (Affirmative nod.)
        Detective Wiggins: She was still standing?
        Mr. Glock: I only fired one shot at that time. Only fired two
shots the whole time.
        Mr. Puiatti: Three.
        By Detective Stahl: Question: I just want to interrupt you.
Carl, at the time when you said you shot her once in the shoulder, then
you shot in the chest; didn’t you?
        Mr. Puiatti: Yes, I shot her twice.
        Mr. Glock: It was the third shot that you missed.
        Mr. Puiatti: So those first two, yeah.
        Question: So you shot her twice, Carl.
        Mr. Puiatti: Yes.
        Question: Once in the shoulder, you said (interrupted).
        Mr. Puiatti: And once in the chest area.
        Question: Chest. And how many times – how many shots did
you – (interrupted.)
        Mr. Glock: Two.
        Question: So how many shots in total did you fire?
        Mr. Glock: Me?
        Question: Yeah.
        Mr. Glock: Two.
        Question: And – (pausing)
        Mr. Puiatti: Altogether, five. One missed.
        Question: One missed. So that was a total of five shots?
        Mr. Glock: The sixth shot got hung up in the gun and we didn’t
worry about it.

                                   9
             Question: Okay. And how many times did you go back now?
             Mr. Glock: We passed by her once – twice – three times.
             Question: Three times you went back and on the third time
      what happened?
             Mr. Glock: That’s when I fired my second and final shot, and
      that’s when she – as we were driving away after the last shot, she fell
      over.
             Mr. Puiatti: She walked about ten yards and then fell over.

(Emphasis added).

      Afterward, Puiatti said they drove to Ocala, Florida, where they pawned

Ritchie’s rings for $200, drank beer and played pool. Puiatti and Glock drove to

Columbia, South Carolina, where they visited Glock’s sister and a friend of

Glock’s, and then they went fishing. Glock pawned the CB radio from Ritchie’s

car for $20. They drove north until they were stopped and arrested on the New

Jersey Turnpike.

      Puiatti and Glock identified several pieces of physical evidence collected by

police: the hundred-dollar check, Ritchie’s purse, pawn tickets, the murder weapon

(the .38 pistol) and the other firearm recovered from Ritchie’s car. Puiatti and

Glock were asked if they had anything else to say, and they averred that their

crimes occurred as they described them and they were in full agreement with each

other’s statements:

            Question: All right. I have nothing more to say. Do you have
      anything to add, Carl Puiatti, to the statements made?
            Mr. Puiatti: Just that I have been treated very fairly by the two

                                          10
       detectives and, umm, everything I’ve said is the truth and the exact
       way that it happened.
              By Detective Stahl: And, Robert Glock, is there anything that
       you want to add?
              Mr. Glock: Just the same thing that Carl just answered.
              By Detective Stahl: Question: All right. And are you both in
       full agreement with each other as to the statement you’ve made, that
       the incident came down exactly that way?
              Mr. Puiatti: Yes.
              Mr. Glock: Yes.

(Emphasis added.)

       After presenting the court reporter’s testimony reading the defendants’ joint

confession, the State introduced into evidence two checks, Ritchie’s two rings, and

the vehicle registration for Ritchie’s car. Then the State rested.

       Neither Puiatti nor Glock presented evidence. In their closing arguments,

they did not contest guilt on the kidnaping and robbery charges, but argued the

evidence merited a conviction for second-degree murder, not first-degree murder.

       The jury’s verdict found Puiatti and Glock guilty of first-degree murder,

kidnaping, and robbery with a firearm. The State presented no evidence in the

penalty phase.3

D.     Glock’s Penalty Phase Evidence


       3
         Before the defendants presented their penalty-phase evidence, Puiatti’s counsel inquired
whether the state trial court would permit the defendants’ family members who were present
during the guilt phase to remain in the courtroom for the penalty phase. The State argued the
rule of sequestration applied in the penalty phase. Glock’s counsel concurred. The state trial
court ruled that the rule of witness sequestration applied.

                                               11
       Glock first called Dr. Gerald Mussenden, a clinical psychologist, who

examined Glock in jail. Dr. Mussenden testified Glock was reading at a ninth-

grade level, had impressive spelling and relatively strong math skills, and was

“functioning at his level of intelligence.” Dr. Mussenden did not state what

Glock’s IQ was, but he testified that Glock was “in the average range of

intelligence.” Dr. Mussenden testified that Glock: (1) had “moderate personality

skills implying that he had some adequate control and inhibitions”; (2) had “some

ability to relate to people in a friendly, sociable manner” and was “fairly objective

in what he perceives”; (3) was “sensitive to others” and “certainly likes to receive

some kind of affection”; (4) had “good feelings for guilt or remorse and does

experience conflicts of his behavior”; (5) had “a strong desire to relate to people”

and (6) would have liked, in the past and the present, to “have a better relationship

with his family and with others.” Dr. Mussenden found these difficulties in

Glock’s personality, including that he: (1) had “difficulty relating to authority,

whether it’s male or female”; (2) had “a problem relating to women” in general; (3)

had “a very poor self-concept, extremely sensitive to his height or shortness”; (4)

felt “very bad about who he is[,] . . . what he’s not done to date[, and] . . . like a

failure”; (5) had “some self-destructive tendencies” that he “turns . . . on himself”

when he is angry and (6) was “also . . . somewhat easily led,” and “somewhat



                                            12
easily influenced by someone who would want to be friendly and create an

atmosphere where he could feel comfortable.”

      Dr. Mussenden also opined that at the time of Ritchie’s murder, Glock was

“cogn[i]tive,” “knew right from wrong,” “could appreciate the quality of his

behavior,” and had reached a “culmination of a history of problems” Glock had

had for years. Dr. Mussenden described Glock’s background problems: (1) his

father left when he was two years old; (2) Glock was “extremely disruptive,”

which Dr. Mussenden attributed to poor parenting; (3) at the age of 13, Glock was

sent to live in an institution, which Dr. Mussenden described as “the ultimate

rejection . . . for any child to experience”; (4) Glock was sent to live with his father

at age 14, which did not work out well, causing additional feelings of failure; (5)

Glock later joined the military, but again had problems; and (6) Glock left the

military and worked a variety of jobs that “didn’t work out very well.” At that

point, at age 22, Glock “no longer had a job, had bills, [and] couldn’t go home to

his father, to his stepmother.” Glock met Puiatti and they developed a

comradeship in part because Puiatti “would pay attention to him, . . . was willing to

give him some support, and . . . understood the problem.” Glock “could identify

with Puiatti because [Puiatti] was also without a job and [had] no place to go.”

      According to Dr. Mussenden, the murder of Ritchie was an expression of



                                           13
Glock’s anger toward women and Glock’s feelings of failure and rejection all his

life. Dr. Mussenden added that murder was not something Glock normally would

have thought of or done. According to Dr. Mussenden, although Glock had a high

level of family discord, he showed few or no signs of sexual deviancy, antisocial

personality, or impulsiveness. Glock “basically doesn’t have a criminal profile.”

Dr. Mussenden opined that Glock had a very good potential for rehabilitation

because he was young, fairly intelligent, had feelings of guilt and conflict about his

behavior, and was not as prone to destructiveness toward others as he was to self-

destructiveness.

      During the State’s cross-examination, Dr. Mussenden testified that Glock

had problems relating to female authority figures, which made him more likely to

choose a female victim for a crime. Dr. Mussenden stated that Glock “would

follow anyone who appears to be fairly assertive and will give him a minimal

amount of attention,” and “[s]hould this person be involved in any type of anti-

social behavior, [Glock] may be a quick subject to follow,” though “[i]t would

depend on the act itself.” Dr. Mussenden testified that Puiatti “gave [Glock] the

type of things he was craving for.” When asked whether it was fair to say Glock

and Puiatti each gave the other something the other needed, Dr. Mussenden stated

he would “imagine that if [Puiatti] also had similar needs or anything similar to



                                          14
that, then, yeah, they may have been able to support each other and felt very

comfortable with each other because of their deficiencies.” Dr. Mussenden

admitted there was “a contradiction” between the facts of Glock’s and Puiatti’s

abduction and murder of Ritchie and Dr. Mussenden’s conclusion that Glock was

not destructive to others. Dr. Mussenden stated that he thought “a possible

explanation, the only explanation I have[,] is that had [Glock] not had this

association that he made on the date of this crime, he would not have been

involved in this incident, such an act. This is a really bad, destructive association.”

       On cross-examination by Puiatti’s counsel, Dr. Mussenden was asked if his

findings were consistent with the fact that it was Mr. Glock’s idea to shoot

Ritchie.4 Dr. Mussenden answered that it would be atypical behavior for Glock,

and Dr. Mussenden still believed Glock “would need someone else to do

something of this nature.” However, Dr. Mussenden admitted his conclusions did

not negate the possibility that it was Glock’s idea to commit the crime, or that it

was Glock who fired the final shot at Ritchie.

       Glock called his stepmother, Willie Mae Glock. Mrs. Glock testified about

how she and Glock’s father (her husband) found Glock in an orphanage when he



       4
        The State objected that the question was a hypothetical based on facts not in evidence.
After reviewing the joint confession transcript, the state trial court overruled the State’s
objection.

                                               15
was fourteen and got legal custody of him. Mrs. Glock testified that she talked to

Glock while he was in jail awaiting trial for Ritchie’s murder, and that Glock was

“[v]ery depressed,” “sorry that it happened,” and “mostly fe[lt] sorry for the family

that it happened to.” Mrs. Glock did not believe Glock “intentionally [did] it”

because it was “not [Glock’s] nature.” Glock was more of a follower than a leader.

      On the State’s cross-examination, Mrs. Glock admitted that Glock had a

problem with anyone telling him what to do because he “never had anyone to

discipline [him] or teach him right from wrong.” Glock “has had to survive any

way he could ever since he was eight years old. He had no mother or father. He’s

had to survive the best way he knew how.” Puiatti had no questions for Mrs.

Glock.

      Glock called Tammy Yonce, Glock’s sister, to testify. Yonce testified that

her and Glock’s mother was “a committed alcoholic” who physically and mentally

abused Glock and Yonce until a court removed Glock from the home and put him

in an orphanage when he was about thirteen years old. Their mother beat Glock

almost daily for minor infractions, called him names, “did not approve of who he

was” and “did not like him because of who his father was.” Glock’s mother later

disowned him.

      Yonce also testified that Glock told her several times that he was sorry for



                                          16
killing Ritchie, that he wished he had not killed her, and that he did not

intentionally do it. Yonce characterized Glock as more of a follower than a leader.

       Glock’s counsel then called Glock to testify.5 Glock testified that he felt “a

lot of remorse and more or less sorrow” for “the victim and her husband.” Glock

was 22 years old and had never been convicted of a crime before. Glock had a

“very hectic” relationship with his mother and he “never really had a relationship”

with his father, although there were “good feelings between us.” Glock had had no

disciplinary problems while in jail. Glock was “sorry about what happened. If

there was anything I could do to bring her back, I would do it.”

       Neither the State nor Puiatti’s counsel cross-examined Glock. Glock then

rested.

E.     Puiatti’s Penalty Phase Evidence

       Puiatti’s first witness was Dr. Donald DelBeato, a forensic psychologist,

who examined Puiatti. Dr. DelBeato felt comfortable enough with Puiatti during

the examination that he removed Puiatti’s manacles and asked the accompanying

deputy to leave them alone in the room together. In the interview, Puiatti “tended

to underplay” his drug usage, but Dr. DelBeato learned from the interview and

other information that Puiatti had used marijuana regularly for several years and


       5
         Puiatti’s counsel renewed Puiatti’s motion to sever the penalty phase, which the state
trial court denied.

                                                17
also used LSD and some cocaine. In his personality profile and clinical interview,

Puiatti was, in Dr. DelBeato’s opinion, being truthful.

      Dr. DelBeato opined that Puiatti was “a rather insecure young man” with “an

inability to sometimes deal with stress and react appropriate[ly].” Dr. DelBeato

found no antisocial tendencies. Puiatti was remorseful for Ritchie’s murder.

Puiatti scored a 95 verbal IQ and a 78 performance IQ. Dr. DelBeato testified that

“if we were in school and the teacher wanted to know what [Puiatti’s] IQ is, I

would say he would probably be average.”

      Although Puiatti’s remote and recent memory were normal, Dr. DelBeato

found there was “a dysfunction to the right hemisphere of [Puiatti’s] brain,” in the

frontal or frontal parietal area which is the emotional center of the brain. Puiatti

had impairments in concentration and patience. Puiatti had “emotional instability

syndrome,” which “could make him edgy, moody, and not know why or [be] easily

influenced.”

      According to Dr. DelBeato, Puiatti’s dysfunction expresses itself when

Puiatti is under stress or under the influence of alcohol or some other toxin. As a

result of his brain dysfunction, Puiatti is “[v]ery easily manipulated.” Puiatti is

“more easily aggressive, more easily violent, more easily influenced, edgy, . . .

may do something that [he] ordinarily would not have done, to make unusual



                                           18
choices.” Dr. DelBeato opined that at the time of Ritchie’s murder, Puiatti was

under stress, and as a result he “would have been more easily dominated by

another individual” and “more likely to do something that he would not normally

do or that he would not do if he were alone.”

      On cross-examination by Glock’s counsel, Dr. DelBeato admitted that (1)

most people are more easily influenced when they are under stress, (2) whether

Puiatti was influenced by Glock depends not only on Puiatti’s psychological

profile, but also on Glock’s, and (3) Dr. DelBeato never examined Glock.

      On the State’s cross-examination, Dr. DelBeato clarified that his opinion

was that there was “a very good probability” that Puiatti’s right-side brain

dysfunction affected his behavior during his kidnaping and murder of Ritchie. Dr.

DelBeato could not say with certainty that that was the case because in his

profession, “there are no certainties.” Dr. DelBeato also could not say with

certainty that Puiatti was under extreme duress or the substantial domination of

another person, but only that Dr. DelBeato’s diagnosis was that Puiatti “could have

been easily influenced.” Dr. DelBeato testified that Puiatti’s conduct as to Ritchie

would likely not have been the same had Puiatti been by himself. Dr. DelBeato

opined that Puiatti could appreciate the criminality of his conduct, but was, within

a reasonable probability, substantially impaired in his ability to conform his actions



                                          19
to the requirements of the law “because of the way the damage that is there [in

Puiatti’s brain] affects aggressiveness.”

      Puiatti called his mother, Linda Puiatti. Mrs. Puiatti testified about Puiatti’s

childhood in New York and how Puiatti befriended other children who were picked

on by other kids, how he started working in the family’s deli business after school

when he was 12, until the family had financial troubles and lost the business. At

age 16, Puiatti started “hanging around with the wrong crowd” and using drugs.

Puiatti’s family got Puiatti to see a counselor about his problems, but eventually

they could not afford the cost.

      The Puiatti family moved to Florida to get a new start. Puiatti quit school

when he was 16. When his mother tried to get him to go back, Puiatti told her the

family needed him to get a job more. Puiatti later joined the Army to better

himself. Puiatti had trouble keeping up in the coursework he had in the Army, and

he continued to use drugs. Puiatti requested and received an honorable discharge

from the Army. He returned home and found a job, where he met his future wife.

      After Puiatti, at age 19, married, his relationship with his wife was one “of

constant fighting.” In all Puiatti’s arguments with his wife, he never struck her.

Puiatti had financial trouble and for a time had to move, with his wife and her

daughter, to live with Puiatti’s parents. Later Puiatti was arrested for helping a



                                            20
friend commit a burglary. While Puiatti was on probation, Mrs. Puiatti tried to get

him help for his continuing drug problem.

       Puiatti and his wife had a baby boy who was born two months premature

and who died after two months. By the time the child was born, Puiatti’s wife had

met another man, and she would not let Puiatti see their son. Puiatti never saw his

child in person, though he got a photograph that he carried with him.

       Puiatti became very troubled after the death of his baby son. Puiatti also

suffered constant chronic chest pain. Puiatti’s teeth hurt, too, but he could not

afford to see a dentist. Puiatti continued with his drug use and lacked motivation

to do anything with his life. Puiatti moved in with his parents and could not find a

job.

       Mrs. Puiatti testified that up until the time Puiatti was arrested for Ritchie’s

murder, he was not violent. Instead, Puiatti “demonstrated a lot of love to us, a lot

of caring, a lot of helping, trying to help us through our difficult financial time.”

       Puiatti’s next witness was his sister, Angela Thatcher, who became aware

that Puiatti was using drugs when he was about 14 or 15 years old. Puiatti became

very moody and “very obnoxious at times.” While growing up, Puiatti tended to

befriend misfits. Puiatti was never violent. Although Thatcher and Puiatti “argued

as brother and sister will, . . . he always verbally abused but never physically – he



                                           21
never struck out or hit anybody in our family or anyone else to my knowledge.”

      Over the past few years, Puiatti became depressed, but in the last year before

his arrest he “was starting to make a new start for himself.” Puiatti “was really into

working as a chef.” Puiatti told Thatcher he was “trying to lead the more or less

straight and narrow path and not get into any more trouble.” Thatcher “found it

hard to believe and, yet, I tried to believe it, because I wanted to hope that he

would change and that he would get his life together and get on the right track.”

Puiatti “was very depressed over the death of his son and . . . felt very tormented

that he had never seen the child.”

      Puiatti called his father, Victor Puiatti, as a witness. Victor Puiatti testified

that in the months before the murder, Puiatti was under a lot of pressure from his

probation officer to pay back an outstanding fine:

      [Puiatti] had to pay a fee once a month of ten dollars to the probation
      department, and I used to take him down to pay this money, and there
      was an outstanding fine of a thousand dollars to be paid within a few
      months. My son was having a hard time making, seeing to it that this
      was being paid. On one occasion we went down to pay the ten dollars
      on the third of the month, and the probation officer said that being as
      he was behind it looked like that he wasn’t going to pay this, and I
      assured him that he was going to pay it, and that I was going to help
      him pay this. And he said, “Well, if you don’t pay it, I can assure you
      that I personally will see that you get fifteen years in prison out of
      this,” which upset him, my son and myself, very much.

Puiatti was doing his best to pay the fine on time, but he had trouble getting to



                                           22
work because he lost his driver’s license after he got a series of tickets.

       In the months before the murder, Puiatti was also very depressed. After his

son died, Puiatti was increasingly depressed and stayed in his room most of the

time. Puiatti said he should be dead with his son. One time during that period,

Victor Puiatti got angry at Puiatti for his negative attitude, raised his voice at

Puiatti, and shoved him. Puiatti did not strike out, instead telling his father that if it

would make him feel better to hit Puiatti, to go ahead and hit him. Victor Puiatti

spoke to Puiatti after Ritchie’s murder, and his son was truly remorseful for what

happened.

       Puiatti’s final penalty-phase witness was psychiatrist Dr. Richard Meadows.

Dr. Meadows examined Puiatti, spoke to Puiatti’s family members, reviewed Dr.

DelBeato’s findings, and reviewed materials from the case, including Puiatti’s

confessions. Dr. Meadows performed a mental status examination on Puiatti and

spoke with Puiatti about his mental condition, legal circumstances, background,

and psychiatric and medical history. Dr. Meadows found Puiatti truthful during

the evaluation.

       Dr. Meadows concluded that Puiatti suffered from “several mental

illnesses,” including avoidance personality and addiction to alcohol and marijuana:

       I was of the opinion that [Puiatti] was suffering from several mental
       illnesses as well as a history of some physical illness. I thought that

                                            23
      he had an emotional problem that we label as avoidance personality.
      In the older diagnostic manuals, that was called inadequate
      personality. I thought from reviewing Dr. DelBeato’s reports and my
      own impressions in talking with Carl [Puiatti], it was highly suspect
      that he may have some brain damage. Um, he had a history of several
      head injuries in which he probably had a concussion. Whether or not
      there was any lasting damage from this, I would not be able to say.
      He had a history of having had suffered pains in his face and head
      from teeth problems, and he had a peptic ulcer approximately a year
      or so before. . . . I feel he also had a severe dependence. Some people
      would call it addiction, some dependence – depending on which
      diagnostic frame you’re talking about – on alcohol and marijuana.

      Dr. Meadows described avoidance personality as “an extreme sensitivity to

feelings of rejection by other people” and a tendency to misinterpret other people’s

comments as a criticism of oneself. Dr. Meadows described people with avoidance

personality as being “suggestible or influenced easily by other people”:

      They appear to be shy, although very often they will very much like to
      be more involved with people. They have a tendency to wish to have
      an unconditional acceptance by other people. Um, they have a very
      poor image of themselves. They often tend to be very self-critical.
      They tended to be suggestible or influenced easily by other people.
      They tend to depend on other people for approval to make them feel
      secure and comfortable and good about themselves. And, also, they
      tend to depend on other people for their care and security, um, and
      these are tendencies to want to lean on somebody or need somebody
      else’s approval. That is a rather extreme degree, usually.

      Dr. Meadows also explained the basis for his suspicion of possible brain

damage:

      I felt in talking with Carl [Puiatti] that there were a number of things
      about the way he said them and what he said that indicated to me in a

                                         24
      very subtle way that there was the possibility of his having brain
      damage. The We[chs]ler Adult Intelligence Scale that Dr. DelBeato
      administered showed a wide difference in verbal and performance
      aspects on this test, and it’s been, um, I don’t recall in my experience
      that I’ve ever seen somebody with that wide a spread of differences in
      their ability to deal with the verbal part and the performance part who
      did not have some sort of brain damage. Um, the other things that
      concerned me [were] the, if his history is accurate, of the very large
      amounts of marijuana that he had used over the years, plus the
      alcohol, led me to suspect that you do get death of brain cells with
      alcohol and you get seven or eight times that high of a rate of death of
      brain cells with marijuana.
             Um, added to this with the indication of emotional instability,
      poor judgment, poor impulse control – these would all go along with
      damage in the brain[,] particularly in these right frontal regions.

Dr. Meadows opined that Puiatti’s right-side brain damage probably contributed to

Puiatti’s increasingly impaired judgment:

      [Puiatti] seemed to have the left brain function more preserved than
      the right. This would lead me to think that it was probably a
      contributory factor in the increasingly impaired judgment that he
      couldn’t stand tension as easily. He was more impatient – more
      emotionally unstable – that his reality testings [were] not always that
      good.
      ....
      . . . I think this would cause a progressive[] deterioration in his
      judgment which would fluctuate depending on the amount of stress he
      was under.

In Dr. Meadows’s opinion, Puiatti suffered from “a progressive brain damage . . .

probably due to the use of pot and alcohol – more likely that than the head injuries

that he had, and that played a part in it and made him . . . less stable.” Dr.

Meadows opined that Puiatti, on an emotional level, functioned like a child of 10

                                           25
or 11.

         Dr. Meadows also explained what factors in Puiatti’s history led to Dr.

Meadows’s diagnosis of avoidance personality:

         I think Carl [Puiatti] . . . started life with some potential and interests
         and assets and things going for him, but problems showing up very
         early in his childhood and then he experienced a series of rather major
         traumas throughout his life. One was in addition to that a number of
         ongoing ones, um, such as getting rheumatism when he was eleven or
         twelve and not being able to follow a professional sport career as he
         very much had his heart set on. I think he was going down the tube
         socially, scholastically and [in] other areas when he was around
         fifteen or sixteen with family problems with finances.
                At that point the family moved to Florida. I think he got his
         hopes up about getting another start when he joined the service. I
         think this was another discouraging, disheartening experience for him.
         Um, and I think things continued from that point on progressively
         after he left the service to become just one series of boon-dogglings in
         practically every area of his life that gave him more and more of a
         sense of depression, futility, numbing out his feelings, functioning
         less and less effectively in every area of his life, and this pattern
         continued almost progressively downhill until the time of the tragedy
         that brought us here.

Dr. Meadows opined that Puiatti’s life showed a pattern of disintegration over the

year or more leading up to Ritchie’s murder:

         He was still in his early twenties, unable to break the apron strings and
         function independently. He was living in and out of his parents’
         home, he was unable to work continuously and hold a job. He was
         relying heavily on alcohol and pot. He was still following his pattern
         of taking in outcasts or people that were kind of misfits where he felt
         he would be accepted. His marriage was breaking up, um, he had a
         great deal of investment in the child that was born of that marriage.
                I think the death of that child and not being able to see the child

                                             26
      added to his burdens – economic problems mounted. I think he felt
      under pressure to make payments in a number of areas, um, I think he
      felt pressure from his probation officer, um, he got in more and more
      jams with DWI’s, lost his driver’s license, um, he was concerned
      about causing, you know, more problems at home with his younger
      brother who was also in the middle of all this family turmoil where his
      folks were trying to help him and his wife out, plus this other fellow
      that they took in under their wing, the younger brother – he felt very
      close to – was having some kind of educational difficulties requiring
      special attention.
      ....
      . . . [T]his concatenation of events that kept escalating, I think, led him
      to feel more and more . . . a sense of futility and depression. There
      was suicidal ideation, there was development of an ulcer which is the
      same thing which has been repeated psychologically earlier when he
      was in his teens when he felt life was futile.

      Dr. Meadows testified that just prior to the crime, Puiatti was at his lowest

point psychologically. For many years Puiatti had used marijuana and alcohol

heavily. Then Puiatti went three or four days without any marijuana, which could

cause “an intense psychological withdrawal experience that’s very unsettling to

some people.”

      Dr. Meadows testified that Puiatti’s personality profile was not one of a

violent person. Dr. Meadows explained:

      [Puiatti’s] rearing . . . imbued [him] with a rather strong moral code
      which would not permit him in good conscience to do harm to other
      people. He was not the sort of person who seemed to enjoy hurting
      other people. He had always avoided open conflict to a great extent –
      go to his room and pound on a pillow, get drunk, withdraw, play
      music in his room, um, he had none of the – well, people who usually
      get violent who have emotional problems tend to be more of a

                                          27
      paranoid schizophrenic or anti-social diagnostic groups. He fit none
      of these categories. He has none of these indications that I can see of
      people who most usually, if they’re not a professional criminal get
      into violence because of, um, the urge to be in control or dominance
      of somebody else or to evince some hostility or some perverse cruelty
      to somebody else.

Dr. Meadows further opined that Puiatti had “a number of things going for him on

the plus side that would argue in favor of rehabilitation.” Dr. Meadows believed

Puiatti (1) felt genuine remorse at what he’d done and (2) would be able to

function and improve himself within the structured confines of the prison system.

      Dr. Meadows also believed Puiatti was easily influenced and under the

substantial domination of another person at the time of Ritchie’s murder:

      Q.       Now, another question that’s important for us here today is
      whether [Puiatti] was suffering from the substantial domination of
      another person. What is your opinion about that – whether he was at
      the time of the crime for which he has been convicted?
      A. I thought so.
      Q. Can you tell us why?
      A.      I think it’s in his nature to be easily influenced. I think it’s a
      very scary thing for him to do anything which causes somebody else
      to disapprove or to stand up for himself against them. And as I
      understand it from the way events were transpiring, he was being
      leaned on rather heavily, um, by the co-defendant.
      Q. Would this be a function, again, of both [Puiatti’s] mental illness
      and the brain damage, the brain dysfunction that you have described?
      A.     I think so. I don’t think you can really separate the two at this
      point. I couldn’t give you a percentage, but I think they continuously
      operate together.

Dr. Meadows characterized Puiatti’s mental state at the time of the crime as



                                         28
“substantially impaired”:

       Q.      Okay. Do you have an opinion as to whether the capacity of
       [Puiatti] to appreciate the criminality of his conduct and to conform
       his conduct to the requirements of law was substantially impaired at
       the time of the crime?
       A. I thought it was substantially impaired at that time, yes.

       Glock’s counsel then briefly cross-examined Dr. Meadows, asking only

three questions. Dr. Meadows admitted that whether Puiatti was under the

substantial domination of another person at the time of the crimes might depend on

the psychological profile of the other person. Dr. Meadows had not performed any

tests on Glock or seen any psychological testing reports on Glock.

       At the close of evidence, Puiatti renewed his motion to sever, which the state

trial court denied, stating:

       [T]his is the classic example of why joint defendants ought to be
       [tried] together in order to get justice. If there are no overriding
       reasons for separating them like [Bruton] testimony or something like
       that, I really am convinced even more so now than at the time I made
       the ruling that the denial of the motion to sever was correct.

F.     Penalty Phase Arguments and Verdicts

       In the penalty phase closing arguments, the State discussed the testimony of

the three mental health experts retained by the defendants, and agreed defendants

Puiatti and Glock were both followers, not leaders:

       [T]hese guys are like – two peas in a pod – the old cliche, as alike as
       two peas in a pod.

                                          29
              What did the doctor say about them from the tests and from
       what other people say? They both have average intelligence, memory,
       both of them notwithstanding what counsel has tried to get across
       through their witnesses, both of them apparently are heavily
       dependent on other persons. They’re followers[], not leaders.
              One of the questions I asked was would either one of these have
       been likely to do this crime by themselves. The answer was no – so, I
       would submit to you, thoroughly from the evidence, there’s no reason
       to treat them any differently. I think that’s what the evidence
       indicates. They are very, very, very similar.
              I think some of the high school biologists talk about symbiotic
       relationships, one that depends on the other – they wouldn’t have
       taken this woman by themselves. They needed the other one to
       boo[s]t his bravery, to make him do things he wouldn’t ordinarily do
       or actually do – the thing that he wouldn’t have the guts to do
       ordinarily. That’s what, they’s why they got together.

       Glock’s counsel argued, among other things, that Glock committed the

crime while under extreme duress. Glock’s counsel did not argue Puiatti

dominated Glock. Rather, Glock’s counsel rested his closing argument on the

duress prong of the statutory mitigating factor in Fla. Stat. § 921.141(6)(e),6 not the

domination prong:

       The third [mitigating] factor, the defendant acted under extreme
       duress or under the substantial domination of another person. There’s
       two ways there can be substantial domination of another person or
       extreme duress, and I submit to you that when you look at the facts
       that you heard from all the doctors, the facts of the incident, what was
       building up in Mr. Glock, a mixture of Mr. Glock and Mr. Puiatti,
       mixed together – those two personalities and I’m not saying that he


       6
        One statutory mitigating circumstance in Florida is that “[t]he defendant acted under
extreme duress or under the substantial domination of another person.” Fla. Stat.
§ 921.141(6)(e).

                                               30
       was dominated or there was substantial domination [of] Mr. Glock.
       What I’m saying is that it’s a mitigating circumstance and is
       applicable because he was under extreme duress based on the totality
       of the circumstances and some weight should be given to that
       mitigating factor for that purpose.

Glock’s counsel also argued that Glock’s criminal conduct was the result of

circumstances unlikely to reoccur. Glock’s counsel stated that “this whole thing

was brought about to a great degree by the bad, destructive association between

these two personalities. It’s just something that occurred. It’s wrong, it doesn’t

justify it, but it’s not likely to occur again.”

       In closing, Puiatti’s own counsel argued that neither Puiatti nor Glock would

have committed the murder without the other:

       The family also said that Carl [Puiatti] was attracted to misfits and
       when asked a question by [the State] whether Carl was perhaps one of
       those himself, Mrs. Puiatti said she wouldn’t deny that he had
       problems. Nonetheless, misfits, both of them misfits. This is a form
       of mitigation. Neither of them apparently – I didn’t know about Mr.
       Glock until I came to this Courtroom, but neither of them apparently
       would have committed a violent act but for the other. And this factor
       is also a form of mitigation.

Puiatti’s counsel referenced Dr. DelBeato’s testimony that Puiatti showed a “flat

affect” – that he felt strong emotions but did not show them outwardly – and that

Dr. DelBeato and Dr. Meadows testified that Puiatti was being truthful and was

remorseful. Puiatti’s counsel then stated that “[t]his is more dependable than any

display of emotion that Carl [Puiatti] might put on to you on the witness stand,

                                             31
although we know from the doctor’s testimony that he’s not capable of that kind of

show.”

      Puiatti’s counsel further argued that Puiatti was under an extreme emotional

disturbance and extreme duress at the time of the murder. His counsel argued

Puiatti was not “absolutely responsible because half of his brain is functioning in

an impaired way and because of the extreme disturbance that he was under

personally.” Puiatti’s counsel did not argue Puiatti was substantially dominated by

Glock.

      By an 11 to 1 vote, the jury recommended the death penalty for Puiatti. By

an 11 to 1 vote, the jury recommended the death penalty for Glock, who was

executed in 2001.

G.    1984 Sentencing Hearing

      On May 4, 1984, the state trial court held a joint sentencing hearing for

Puiatti and Glock. Puiatti called three witnesses. Chuck Norman, Puiatti’s first

witness, was a volunteer who conducts weekly group discussions on alcoholism

and drug abuse in the jail. Puiatti voluntarily attended every meeting except for

one when he had the flu. Over the course of eight months, Norman noticed a

“definite change” in Puiatti. Puiatti began to open up about his own history of

drug and alcohol abuse, and doing so had an effect on the other inmates and on



                                          32
Norman himself.

      Puiatti’s other witnesses were Dr. DelBeato and Dr. Meadows. Both experts

reiterated their penalty-phase testimony. For example, Dr. DelBeato again opined

that Puiatti had right-brain dysfunction that was highly related to stress that Puiatti

was under, with the “higher the stress, the lower his ability to behave correctly.”

Dr. Meadows testified about Puiatti’s right-brain dysfunction, which he believed

was likely caused by alcohol and drug use, and about Puiatti’s psychological

stressors at the time of the murder. Puiatti’s counsel then argued.

      Puiatti himself made this statement:

      I know I’m here this morning to be sentenced for the crime of first
      degree murder. A crime I am deeply ashamed of.
             Your Honor, as I’ve laid down to sleep each night these past
      eight months, there’s one question above all others that makes me – to
      find it difficult to fall asleep. And that question is, why didn’t I keep
      driving away after I dropped Mrs. Richie off in the orange grove.
             And to be perfectly honest with you, Your Honor, I really don’t
      know why I let myself be talked in to going back and shooting this
      woman.
             When I drove into the orange grove, the only thing I had on my
      mind was dropping her off somewhere, where it would take her a
      while to get to a phone or get to some people. So I could get away.
      Not killing her.
             All I had to do was keep going like I was after I dropped her
      off, and she would still be alive today.
             But as much as I truly wish I could, I cannot change that.
             Your Honor, as I’m sure you can see from my P.S.I., it’s not my
      nature to commit violent crimes, or to be violent and this sort of thing
      was totally out of character for me.
             Another thing that was giving me much grief and sadness over

                                           33
       these past eight months, is the way I have disgraced my family
       through what I’ve done.
       ....
             I love and care for them very much, and pray that I never hurt
       them again.

(Emphasis added.) Puiatti recounted his progress with Alcoholics Anonymous and

believed he could be rehabilitated in prison. Puiatti explained his remorse for the

pain he had caused Ritchie’s husband.

       The state trial court sentenced Puiatti and Glock to death, stating:

       On the charge of murder in the first degree, it is the sentence of this
       Court that you each be put to death according to the law. And in
       reaching that sentencing judgment, I find three aggravating
       circumstances.
              First is that the capital felony was committed for the purpose of
       avoiding a lawful arrest, or effect escape from custody.
              And secondly, that it was committed for p[ec]uniary gain.
              And third, that this capital felony was a homicide and
       committed in a cold, calculated and premeditated manner, without any
       pretext of moral or legal justification.
              I find a mitigating factor for Mr. Glock, that he had no
       significant history of prior criminal activities.
              I find no mitigating factors for Mr. Puiatti.[7]
              And in weighing this mitigating factor that I find for Mr. Glock,
       and the aggravating factors that I find, I’m convinced that the sentence
       of death is mandated by Florida law.

The state trial court sentenced Puiatti and Glock to life imprisonment for their



       7
         Puiatti had two prior felony convictions, for burglary of a dwelling and for introduction
of contraband into a county facility. In the penalty phase, the State did not introduce evidence of
Puiatti’s prior convictions because Puiatti agreed to waive any argument that the mitigating
factor of no significant prior criminal history applied.

                                                34
robbery and kidnaping convictions.

H.     Direct Appeal

       Puiatti appealed to the Florida Supreme Court, raising eight issues. See

Puiatti v. State, 495 So. 2d 128 (Fla. 1986) (“Puiatti I”), vacated and remanded by

Puiatti v. Florida, 481 U.S. 1027, 107 S. Ct. 1950 (1987). As to his motions to

sever, Puiatti argued that the state trial court abused its discretion in refusing a

severance because the joint trial prejudiced Puiatti. Puiatti argued that the

prejudice accrued from three primary sources: (1) antagonistic post-arrest

statements; (2) inconsistent and conflicting penalty phase defenses; and (3) penalty

phase jury instructions and prosecutorial comments that were relevant to Glock’s

case but prejudicial error as to Puiatti.

       The Florida Supreme Court affirmed Puiatti’s convictions and death

sentence. Puiatti I, 495 So. 2d at 129. As to guilt-phase severance, the Florida

Supreme Court held that Puiatti’s constitutional right to confrontation under the

Confrontation Clause and Bruton8 was not violated by the introduction of Glock’s

individual confession implicating Puiatti because Puiatti also confessed, Puiatti’s

and Glock’s individual confessions were interlocking, and their subsequent joint

confession reconciled any minor differences in their individual confessions:



       8
           Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968).

                                                 35
      We find that Bruton is not applicable under the facts of this cause,
      concluding that Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60
      L. Ed. 2d 713 (1979), controls this case. In Parker, the United States
      Supreme Court held that Bruton does not require reversal of a
      defendant’s conviction when the defendant himself has confessed and
      his confession “‘ interlocks’ with and supports the confession of his
      codefendant.” Id. at 64, 99 S. Ct. at 2135. Confessions interlock
      when the salient facts against the first defendant that appear in the
      confession of the second defendant also appear in the confession of
      the first, and vice versa. United States v. Kroesser, 731 F.2d 1509,
      1518 (11th Cir. 1984); Brownlee v. State, 478 So. 2d 467 (Fla. 4th
      DCA 1985); Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981).
      These cases establish that interlocking confessions need not be
      identical statements; it is sufficient if the confessions are substantially
      consistent on the major elements of the crime involved.
             In this case, Puiatti and Glock offered interlocking confessions.
      The initial individual confessions contained only slight
      inconsistencies, and each set forth sufficient evidence on the charged
      crimes to sustain the confessor’s conviction. The fact that Glock’s
      initial confession might have been exculpatory toward Puiatti
      concerning some details does not render its admission harmful when
      Puiatti’s own confession clearly shows him guilty of the crime with
      which he is charged. Further, the subsequent joint confession,
      admitted without objection by Puiatti, reconciled the minor
      discrepancies of the individual confessions by Puiatti and Glock. We
      conclude that the trial court correctly denied Puiatti’s motion for
      severance during the guilt phase of the trial. We emphasize that the
      inconsistencies between Puiatti’s and Glock’s initial confessions do
      not affect their guilt in the charged crimes since both admit they shot
      the victim. Each appellant is guilty of all the acts of the other in
      perpetrating the common criminal act.

Puiatti I, 495 So. 2d at 130-31 (citations omitted) (emphasis added).

      As to the penalty phase, the Florida Supreme Court determined severance

was not required because the jury was able to consider Puiatti’s penalty-phase



                                          36
evidence and apply the law without confusion or prejudice:

      We hold that a severance was not required in the penalty phase of the
      trial.   As to the alleged conflict concerning which defendant
      dominated the other, our decision in McCray disposes of this
      contention. In McCray we stated:
             [T]he fact that the defendant might have a better chance
             of acquittal or a strategic advantage if tried separately
             does not establish the right to a severance. Nor is
             hostility among defendants, or an attempt by one
             defendant to escape punishment by throwing the blame
             on a codefendant, a sufficient reason, by itself, to require
             severance. If the defendants engage in a swearing match
             as to who did what, the jury should resolve the conflicts
             and determine the truth of the matter.
      416 So. 2d at 806 (citations omitted). See also Dean v. State, 478 So.
      2d 38 (Fla. 1985). Further, we find the mere fact that only one of two
      codefendants has a significant prior criminal history does not require,
      in and of itself, a severance in the trial’s penalty phase. The critical
      question is whether the jury was able to consider evidence presented
      by each defendant during the penalty phase and apply the law without
      being unduly confused or prejudiced. We find that, under the
      circumstances of this case, the jury could properly apply the facts to
      the law without confusion or prejudice.

Puiatti I, 495 So. 2d at 131 (brackets in original).

      Puiatti petitioned the United States Supreme Court for a writ of certiorari. In

a one-paragraph opinion, the Supreme Court granted the petition, vacated the

Florida Supreme Court’s judgment, and remanded the case to the Florida Supreme

Court for further consideration in light of the Supreme Court’s Confrontation

Clause decision in Cruz v. New York, 481 U.S. 186, 107 S. Ct. 714 (1987). See

Puiatti v. Florida, 481 U.S. 1027, 107 S. Ct. 1950 (1987). In Cruz, the Supreme

                                           37
Court concluded “that, where a nontestifying codefendant’s confession

incriminating the defendant is not directly admissible against the defendant, the

Confrontation Clause bars its admission at their joint trial, even if the jury is

instructed not to consider it against the defendant, and even if the defendant's own

confession is admitted against him.” 481 U.S. at 193, 107 S. Ct. at 1719 (citation

omitted).9 The Cruz Court stated, however, that “the defendant’s confession may

be considered at trial in assessing whether his codefendant’s statements are

supported by sufficient ‘indicia of reliability’ to be directly admissible against [the

defendant] (assuming the ‘unavailability’ of the codefendant) despite the lack of

opportunity for cross-examination, and may be considered on appeal in assessing

whether any Confrontation Clause violation was harmless.” Id. at 193-94, 107 S.

Ct. at 1719 (citations omitted).

       On remand, the Florida Supreme Court affirmed Puiatti’s convictions and

death sentence. Puiatti v. State, 521 So. 2d 1106, 1108 (Fla. 1988) (“Puiatti II”).



       9
         The facts of Cruz are very different from that of Puiatti’s case. Petitioner Cruz did not
confess to police, and there was no joint confession as here. Rather, a non-testifying co-
defendant gave a videotaped confession to police that incriminated Cruz. The trial court
admitted the co-defendant’s confession only against the co-defendant and instructed the jury not
to consider it against Cruz. Cruz, 481 U.S. at 188-89, 107 S. Ct. at 1716-17.
        At trial, a witness testified that Cruz had told him privately about the murder and that
witness’s testimony about Cruz’s private confession “stood as the only evidence admissible
against [Cruz] that directly linked him to the crime.” Id. at 189, 107 S. Ct. at 1717. Further,
Cruz was convicted of second-degree murder, not capital murder, and there was no penalty phase
trial. See id. at 188-89, 107 S. Ct. at 1716-17; People v. Cruz, 485 N.E.2d 221 (N.Y. 1985).

                                               38
The Florida Supreme Court pointed out that Cruz did not concern a true joint

confession by both defendants, that Glock and Puiatti’s joint confession resolved

any prior inconsistencies in their earlier individual confessions, and that Glock’s

individual and joint confession had the requisite indicia of reliability. Id. at 1107-

08. The Florida Supreme Court reasoned:

      As we interpret Cruz, trial courts must recognize that a nontestifying
      codefendant’s confession in a joint trial violates the confrontation
      clause except in those limited circumstances where indicia of
      reliability can be established. Once such a confession is introduced,
      the reviewing court must determine whether indicia of reliability exist
      or whether the introduction of a codefendant’s confession meets the
      harmless error test.
             We fully recognize the Supreme Court’s warning about the
      potential damning effects of a codefendant’s confession on the
      incriminated defendant. However, we find that the facts in the instant
      case are clearly distinguishable from those in Cruz because Puiatti and
      Glock not only entered into separate interlocking confessions, but they
      also subsequently entered into a joint confession resolving all prior
      inconsistencies. Neither Cruz nor Parker concerned a true joint
      confession entered into by both defendants. The joint confession, as
      we explained in the majority opinion, is substantially consistent with
      the individual confessions of Glock and Puiatti. Further, the joint
      confession was so interlocking, we do not believe Bruton applies
      because reliability was clearly established, but, even if it was error, its
      use with Glock’s name was harmless. We find the introduction of the
      individual confession of Glock to be harmless error under the
      circumstances of this case, and it falls squarely within the harmless
      error situation noted by Justice Blackmun when he stated: “I fully
      recognize that in most interlocking confession cases, any error in
      admitting the confession of a nontestifying codefendant will be
      harmless beyond a reasonable doubt.” [Parker v. Randolph, 442 U.S.]
      at 79, 99 S. Ct. 2142 (Blackmun, J., concurring in part and concurring
      in the judgment).

                                           39
Puiatti II, 521 So. 2d at 1107-08. The Florida Supreme Court concluded that “the

introduction of the individual interlocking confession of Glock and the joint

confession was harmless error, even if it was error.” Id. at 1107.

       Puiatti again petitioned for a writ of certiorari. The United States Supreme

Court denied Puiatti’s petition. Puiatti v. Florida, 488 U.S. 871, 109 S. Ct. 184

(1988).

I.     State Postconviction Proceedings

       In 1990, Puiatti filed a Florida Rule of Criminal Procedure 3.850 motion to

vacate his convictions and death sentence, which was denied. Puiatti’s Rule 3.850

motion raised five claims, including ineffective trial counsel in the guilt and

penalty phases.

       Puiatti appealed the denial of his 3.850 motion to the Florida Supreme Court

and simultaneously filed a state habeas petition in the Florida Supreme Court.

Puiatti’s state habeas petition asserted he had ineffective appellate counsel who

failed to argue the joint trial violated Puiatti’s constitutional right to an

individualized sentencing.10


       10
          Puiatti’s individualized sentencing claim – that he alleged his appellate counsel should
have raised – was grounded in the Sixth, Eighth, and Fourteenth Amendments, as well as the
United States Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978).
        Puiatti’s state habeas petition also claimed that Puiatti’s rights were violated by the
State’s introduction of victim-impact and victim-character evidence at trial, and by the Florida
Supreme Court’s consolidated treatment of Puiatti’s and Glock’s claims on direct appeal.

                                                40
       The Florida Supreme Court affirmed the denial of Puiatti’s 3.850 motion and

denied his state habeas petition. Puiatti v. Dugger, 589 So. 2d 231, 232 (Fla. 1991)

(“Puiatti III”). The Florida Supreme Court concluded that Puiatti had not shown

his appellate counsel rendered constitutionally deficient performance. Puiatti III,

589 So. 2d at 235.

J.     District Court Proceedings

       In 1992, Puiatti filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus,

challenging his convictions and death sentence. Several times, Puiatti’s case was

administratively stayed pending the outcome of other state or federal proceedings.

On August 14, 2009, the district court denied Puiatti’s § 2254 claims as to his

convictions but vacated his death sentence. Puiatti v. Sec’y, Dep’t of Corr., 651 F.

Supp. 2d 1286 (M.D. Fla. 2009) (“Puiatti IV”). The district court concluded that

the state trial court’s refusal to sever the penalty phase violated Puiatti’s Eighth and

Fourteenth Amendment right to an “individualized sentencing determination.”

The district court did not decide Puiatti’s other challenges to the penalty phase, but

held they were moot.11 Id. at 1304. The State moved the district court to alter or

amend its order vacating Puiatti’s death sentence. The State argued that the district


       11
          The district court did not address these penalty-phase claims: (1) ineffective trial
counsel; (2) the prosecutor’s allegedly inflammatory arguments; (3) the state trial court’s refusal
to find certain mitigating circumstances; and (4) the state trial court’s refusal to provide certain
jury instructions on aggravating circumstances. Puiatti IV, 651 F. Supp. 2d at 1296-97, 1304.

                                                 41
court’s failure to resolve Puiatti’s remaining penalty-phase issues violated this

Court’s directive in Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), that

district courts “resolve all claims for relief raised in a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 . . . , regardless whether habeas relief is

granted or denied.” Id. at 936. The district court denied the State’s motion.

       The State appealed the district court’s vacatur of Puiatti’s death sentence and

denial of the motion to alter or amend.12 Before discussing the State’s appeal, we

review briefly the events in co-defendant Glock’s appeals.

K.     Glock’s Appeals and Postconviction Proceedings

       As Puiatti was pursuing his appeals and postconviction proceedings, his co-

defendant Glock was doing the same. On direct appeal, the Florida Supreme Court

consolidated Glock’s appeal with Puiatti’s. Glock claimed, among other things,

that the state trial court erred in refusing to sever Puiatti’s and Glock’s penalty

phase trial. The Florida Supreme Court denied Glock’s claims challenging his

death sentence – including his penalty-phase severance claims – for the same

reasons it denied Puiatti’s. Puiatti I, 495 So. 2d at 132.

       Glock filed a Rule 3.850 motion for postconviction relief, which the Florida


       12
         Both the district court and this Court denied Puiatti a certificate of appealability to
cross-appeal the denial of his claims challenging his convictions. Puiatti IV, 651 F. Supp. 2d at
1319-20; Puiatti v. McNeil, No. 09-15514 (11th Cir. Jun. 6, 2010) (order denying
Appellee/Cross-Appellant Puiatti’s application for certificate of appealability) (unpublished).

                                                42
trial court denied in 1988. Glock appealed to the Florida Supreme Court and filed

in the Florida Supreme Court a petition for a writ of habeas corpus. The Florida

Supreme Court affirmed the denial of Glock’s Rule 3.850 motion and denied his

state habeas petition. Glock v. Dugger, 537 So. 2d 99 (Fla. 1989) (“Glock I”).

         In 1989, Glock filed a § 2254 petition in district court. Glock’s petition

claimed, inter alia, that the state trial court erred by not granting Glock a severance

at the guilt and penalty phases. The district court denied Glock’s § 2254 petition.

Glock v. Dugger, 752 F. Supp. 1027 (M.D. Fla. 1990) (“Glock II”). In doing so,

the district court concluded that Glock’s Confrontation Clause rights were not

violated by admission of Puiatti’s individual confession and the joint confession,

and the state trial court did not err in denying Glock’s motions to sever. Id. at

1029-31.13

         In 1994, a panel of this Court affirmed in part and reversed in part. Glock v.

Singletary, 36 F.3d 1014 (11th Cir. 1994) (“Glock III”). This Glock III decision

was vacated on April 19, 1995. Glock v. Singletary, 51 F.3d 942 (11th Cir. 1995)

(en banc). This Court en banc concluded that (1) Glock was not entitled to relief

on his Confrontation Clause claim on the merits, and (2) the non-retroactivity

principle of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) precluded relief


         13
              Glock’s and Puiatti’s separate § 2254 petitions were ruled on by the same district court
judge.

                                                     43
on Glock’s HAC jury instruction claim. Glock v. Singletary, 65 F.3d 878, 880

(11th Cir. 1995) (en banc) (“Glock IV”). The en banc Court remanded the case to

the panel to consider Glock’s remaining challenges to his death sentence. Id.

      On remand, the Glock panel considered those claims, which included

Glock’s claim “that his [death] sentence should be set aside because . . . the [state]

trial court refused to sever [Glock’s] sentencing proceeding from his co-

defendant’s, thereby depriving him of individualized sentencing.” Glock v.

Singletary, 84 F.3d 385, 385 (11th Cir. 1996) (“Glock V”). The Glock V panel

summarily affirmed the district court’s denial of Glock’s penalty-phase severance

claim, stating, “We find no merit in [this] . . . claim[] and therefore affirm the

district court’s denial of relief thereon.” Id. at 386. But the Glock V panel

remanded the case to the district court for an evidentiary hearing on Glock’s

ineffective trial counsel claim. Id. The United States Supreme Court denied

Glock’s petitions for certiorari. Glock v. Singletary, 519 U.S. 888, 117 S. Ct. 225

(1996); Glock v. Singletary, 519 U.S. 1044, 117 S. Ct. 616 (1996).

      The district court conducted an evidentiary hearing on Glock’s ineffective

assistance claim and again denied the claim. This Court affirmed. Glock v.

Moore, 195 F.3d 625 (11th Cir. 1999) (“Glock VI”). The United States Supreme

Court denied Glock’s certiorari petition. Glock v. Moore, 531 U.S. 890, 121 S. Ct.



                                           44
213 (2000).

      After the Florida governor signed Glock’s death warrant, Glock filed a

successive Rule 3.850 motion, which was denied in 2000. Glock appealed and

filed a successive state habeas petition in the Florida Supreme Court. The Florida

Supreme Court affirmed the denial of Glock’s successive 3.850 motion and denied

Glock’s successive habeas petition. Glock v. Moore, 776 So. 2d 243 (Fla. 2001)

(“Glock VII”). The United States Supreme Court denied Glock’s certiorari petition

and his application for a stay of execution. Glock v. Florida, 531 U.S. 1107, 121 S.

Ct. 848. Glock was executed in 2001.

                          II. STANDARD OF REVIEW

      Because Puiatti filed his § 2254 petition before the April 24, 1996 effective

date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we review

his claims under pre-AEDPA law. Turner v. Crosby, 339 F.3d 1247, 1273 (11th

Cir. 2003). “Pre-AEDPA, questions of law and mixed questions of law and fact

resolved by state habeas courts are reviewed de novo, while the state courts’

factual findings are subject to [a] presumption of correctness.” Jefferson v. Hall,

570 F.3d 1283, 1300 (11th Cir. 2009), vacated and remanded on other grounds sub

nom. Jefferson v. Upton, — U.S. —, 130 S. Ct. 2217 (2010) (quotation marks

omitted). We review de novo the district court’s grant of Puiatti’s § 2254 petition.



                                          45
Turner, 339 F.3d at 1273. Any factual findings made by the district court are

reviewed for clear error, but its legal conclusions and mixed questions of law and

fact are reviewed de novo. Id.

                                III. CLISBY ERROR

      In Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc), this Court,

exercising its supervisory power over the district courts in this circuit, instructed

them “to resolve all claims for relief raised in a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 . . . , regardless [of] whether habeas relief is granted

or denied.” Here, the district court expressly declined to reach the merits of

Puiatti’s penalty-phase claims other than his severance claim. The district court

attempted to distinguish Clisby by reasoning that (1) the district court did not

“‘reserve’ judgment” on Puiatti’s other penalty-phase claims, as the district court

had in Clisby, but “actually rendered [them] moot”; and (2) the district court in

Clisby already had held an evidentiary hearing, but here the district court had not,

and so Clisby’s judicial economy concerns were supported by declining to reach

the merits of Puiatti’s penalty-phase claims.

      The district court’s reasoning and its resulting decision are contrary to the

dictates of Clisby. Clisby’s instruction to district courts was clear and contained

no limitation or exception based on why a district court left some claims



                                           46
unresolved. In fact, in two of the five published decisions cited by the Clisby

Court as examples of “the growing number of cases in which we are forced to

remand for consideration of issues the district court chose not to resolve,” the

unresolved claims were mooted by the district court’s grant of the writ as to one or

more claims. See Clisby, 960 F.2d at 935-36 (citing, inter alia, Wilson v. Kemp,

777 F.2d 621 (11th Cir. 1985); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985));

Wilson, 777 F.2d at 622 (district court denied all claims as to guilt phase, granted

habeas relief as to sentence based on prosecutorial-comment claim, and declined to

reach other claims as to sentencing phase); Blake v. Zant, 737 F.2d 925, 926 (11th

Cir. 1984) (district court granted writ based on claims of ineffective assistance at

guilt and penalty phases and did not decide other claims), opinion vacated by Blake

v. Kemp, 758 F.2d at 523.

      Further, Clisby’s instruction to district courts does not turn on whether an

evidentiary hearing may be required. Instead, Clisby focused on concerns of

“piecemeal litigation,” the “important interests of comity and finality implicated in

federal habeas review of state convictions and sentences,” and “the disruptive

effect federal habeas review has on a state’s criminal justice system” until all

federal habeas claims are resolved. Clisby, 960 F.2d at 935. Such policy

considerations “clearly favor the contemporaneous consideration of allegations of



                                          47
constitutional violations grounded in the same factual basis,” id. at 936, and that is

true regardless of whether an evidentiary hearing in district court may be required

on some, but not all, claims.

       Thus, the district court erred in refusing to address the merits of all of

Puiatti’s claims. Nevertheless, in the interest of avoiding further delay in a case

that has already lingered far too long (Puiatti filed his federal habeas petition over

eighteen years ago), we elect to address the State’s appeal on the penalty-phase

severance claim rather than vacate the district court’s judgment without prejudice

and remand for full resolution.14

                    IV. PENALTY-PHASE SEVERANCE CLAIM

       Puiatti does not contend that joint penalty phases in capital cases are

prohibited or are always per se unconstitutional. Rather, Puiatti argues that, under

the particular circumstances of his capital case, the state trial court’s denial of his



       14
          The State argues that the district court abused its discretion in determining that an
evidentiary hearing was warranted on Puiatti’s remaining penalty-phase claims. We agree with
Puiatti that the district court never actually decided this issue. Rather, at most the district court
merely assumed that an evidentiary hearing may be needed if it were to reach Puiatti’s remaining
penalty-phase claims. In fact, the district court expressly stated that if this Court were to reverse
the district court’s grant of habeas relief as to Puiatti’s penalty-phase severance claim, the
district court on remand “would have to resolve Puiatti’s claim that he is entitled to an
evidentiary hearing.”
         We also decline the State’s invitation to pass upon the propriety of an evidentiary hearing
in the first instance. Of course, we point out that Puiatti, having successfully argued that the
district court has not yet decided his entitlement to an evidentiary hearing, may not take a
contrary position on remand.

                                                 48
severance motion violated his Eighth and Fourteenth Amendment right to an

individualized sentencing determination.15 Although Puiatti’s argument

intertwines severance and individualized sentencing, we explain why these are

separate and different concepts. We start with established federal principles about

joinder and severance, next review Puiatti’s constitutional right to an

individualized sentencing determination, and then analyze Puiatti’s claims about

his joint penalty trial. Joinder and severance first.16

A.     Joinder and Severance

       “Joint trials play a vital role in the criminal justice system.” Zafiro v. United

States, 506 U.S. 534, 537, 113 S. Ct. 933, 937 (1993) (quotation marks omitted);

Richardson v. Marsh, 481 U.S. 200, 209, 107 S. Ct. 1702, 1708 (1987). The

general rule or preference is that defendants indicted together should be tried


       15
         The State argues that Puiatti failed to exhaust this claim in state court and thus is
procedurally barred from raising it in federal court. Puiatti claims he adequately raised this
claim on direct appeal and the Florida Supreme Court denied it. We assume for purposes of this
opinion only that Puiatti exhausted this claim because it lacks merit in any event.
       16
          In this § 2254 proceeding, we examine only federal law and not whether Puiatti was
entitled to severance under state law. The Florida Supreme Court already held a severance was
not required in the penalty phase of Puiatti’s trial under Florida law. Puiatti I, 495 So. 2d at 131.
Further, in § 2254 cases, petitioners may raise only federal rights. See McCullough v.
Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (noting that “[a] federal habeas petition may be
entertained only on the ground that a petitioner is in custody in violation of the Constitution or
laws or treaties of the United States,” and thus “[a] state’s interpretation of its own laws or rules
provides no basis for federal habeas corpus relief, since no question of a constitutional nature is
involved”). We discuss joinder and severance principles only because Puiatti makes what he
calls a “severance constitutional claim,” namely that denial of his severance motion deprived
him of his constitutional right to an individualized sentencing determination.

                                                 49
together. Zafiro, 506 U.S. at 537-38, 113 S. Ct. at 937; United States v. Baker, 432

F.3d 1189, 1236 (11th Cir. 2005). “Joint trials generally serve the interests of

justice by avoiding inconsistent verdicts and enabling more accurate assessment of

relative culpability – advantages which sometimes operate to the defendant’s

benefit.” Richardson, 481 U.S. at 210, 107 S. Ct. at 1708-09. The Supreme Court

has admonished that “[i]t would impair both the efficiency and the fairness of the

criminal justice system to require . . . that prosecutors bring separate proceedings,

presenting the same evidence again and again, requiring victims and witnesses to

repeat the inconvenience (and sometimes trauma) of testifying, and randomly

favoring the last-tried defendants who have the advantage of knowing the

prosecution’s case beforehand.” Id. Joint trials have long been a common and

preferred procedure in both federal and state courts.

      Although these Supreme Court cases involve the guilt or innocence issue,

the same considerations – serving justice, avoiding inconsistent verdicts, enabling

more accurate assessments of relative culpability, fairness, and efficiency – that

militate in favor of joinder of co-defendants’ trials in the guilt phase also favor

joint penalty trials. See United States v. Tipton, 90 F.3d 861, 892 (4th Cir. 1996).

Accordingly, co-defendants charged with capital murder have been jointly tried not

only in Florida but also under federal statutes for both the guilt and penalty phases.



                                           50
See United States v. Bernard, 299 F.3d 467, 475 (5th Cir. 2002); United States v.

Causey, 185 F.3d 407 (5th Cir. 1999); Tipton, 90 F.3d 861.17

       Nonetheless, trial courts have discretion to grant a severance if a defendant

carries his burden to show both that (1) a joint trial would actually prejudice the

defendant and (2) a severance is the proper remedy for the prejudice, rather than

jury instructions or another remedy. Zafiro, 506 U.S. at 539-41, 113 S. Ct. at 938-

39; United States v. Browne, 505 F.3d 1229, 1268-69 (11th Cir. 2007); see also

United States v. Blankenship, 382 F.3d 1110, 1122 (11th Cir. 2004) (noting that in

Zafiro, “the Supreme Court set down a two-step test for determining whether a

defendant is entitled to a new trial due to a district court’s refusal to sever”).18

       As to the first Zafiro step, a defendant “must carry the heavy burden of

demonstrating the lack of a fair trial due to actual, compelling prejudice.” United

States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009), cert. denied, 79 U.S.L.W.

3245 (U.S. Oct. 18, 2010) (No. 10-6534); see United States v. Gari, 572 F.3d 1352,

1365 (11th Cir. 2009) (“We will not reverse the denial of a severance motion

absent a clear abuse of discretion resulting in compelling prejudice against which


       17
        In Florida, as in federal court, the same jury that hears the guilt phase hears the penalty
phase. See Maxwell v. Wainwright, 490 So. 2d 927, 933 (Fla. 1986).
       18
         Our discussion does not focus on the text of any state or federal rule about joinder or
severance because the question here is only whether the state courts’ denial of severance violated
the federal Constitution.

                                                 51
the district court could offer no protection.” (quoting United States v. Walser, 3

F.3d 380, 385 (11th Cir. 1993))), cert. denied, 130 S. Ct. 1562 (2010); United

States v. Novaton, 271 F.3d 968, 989 (11th Cir. 2001) (stating a defendant must

discharge the “‘heavy burden’ of demonstrating ‘compelling prejudice’ from the

denial of a motion to sever” (quoting United States v. Pepe, 747 F.2d 632, 650-51

(11th Cir. 1984))). In Zafiro, the Supreme Court explained that “[m]utually

antagonistic defenses are not prejudicial per se.”19 Zafiro, 506 U.S. at 538, 113 S.

Ct. at 938; see Blankenship, 382 F.3d at 1122 (stating Zafiro “specifically rejected

the notion that defendants who have contradictory defenses are inherently

prejudiced”). And “it is well settled that defendants are not entitled to severance

merely because they may have a better chance of acquittal in separate trials.”

Zafiro, 506 U.S. at 540, 113 S. Ct. at 938.

       As to the second Zafiro step, severance is not automatically required even if

prejudice is shown. Zafiro, 506 U.S. at 539-40, 113 S. Ct. at 938. A court’s

limiting instruction to the jury will often cure any prejudice resulting from a joint

trial. Zafiro, 506 U.S. at 539, 113 S. Ct. at 938. Zafiro teaches that a district court

should grant severance “only if there is a serious risk that a joint trial would



       19
         In Zafiro, the Supreme Court surveyed circuit court decisions and observed that “the
courts have reversed relatively few convictions for failure to grant a severance on grounds of
mutually antagonistic or irreconcilable defenses.” 506 U.S. at 538, 113 S. Ct. at 937.

                                               52
compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Id. Under Zafiro, there are

only two circumstances in which severance is mandatory: where there is a serious

risk that a joint trial (1) “would compromise a specific trial right of one of the

defendants,” or (2) would “prevent the jury from making a reliable judgment about

guilt or innocence.” United States v. Thompson, 422 F.3d 1285, 1292 (11th Cir.

2005) (quoting Zafiro, 506 U.S. at 539, 113 S. Ct. at 938); Browne, 505 F.3d at

1269; Blankenship, 382 F.3d at 1122-23.20 “Aside from the two categories of

defendants specified by the Supreme Court, most other defendants prejudiced by a

joint trial are entitled only to curative instructions.” Blankenship, 382 F.3d at 1123

(discussing “the two-step test” in Zafiro).

       The decision whether to grant a severance lies within the trial court’s sound

or substantial discretion. Zafiro, 506 U.S. at 538-39, 113 S. Ct. at 938; Chavez,

584 F.3d at 1360 (“We will not reverse the denial of a severance motion in the

absence of a clear abuse of discretion.”); United States v. Ramirez, 426 F.3d 1344,

1352 (11th Cir. 2005) (“We will not reverse the denial of a severance motion


       20
          In Blankenship, this Court said the first scenario for “mandatory severance” described
by the Supreme Court in Zafiro “exists only where a joint trial leads to the denial of a
constitutional right.” 382 F.3d at 1123. We also observed that “[r]egarding the second scenario
mentioned by Zafiro, the Court did not clearly explain what it meant by a jury being prevented
from ‘making a reliable judgment.’” Id. We then discussed potential situations where the
“reliable judgment” exception might apply. Id. at 1123-25.

                                               53
absent a clear abuse of discretion resulting in compelling prejudice against which

the district court could offer no protection.” (quoting Walser, 3 F.3d at 385)).

Appellate courts are generally reluctant to second-guess a trial court’s decision on

severance. United States v. Baker, 432 F.3d 1189, 1236 (11th Cir. 2005); Ramirez,

426 F.3d at 1352; United States v. Novaton, 271 F.3d at 989.

       Before analyzing Puiatti’s claims about his joint trial, we review the

Supreme Court decisions establishing his constitutional right to an individualized

sentencing determination because Puiatti tries to link severance with that right.

B.     Puiatti’s Constitutional Right to an Individualized Sentencing
       Determination

       We start with Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978), where

the Supreme Court vacated a death sentence because the Ohio statute narrowly

limited the type of mitigating factors the sentencer could consider.21 A Supreme




       21
         The Lockett Court described the Ohio statute:
       Once a verdict of aggravated murder with specifications had been returned, the Ohio
       death penalty statute required the trial judge to impose a death sentence unless, after
       “considering the nature and circumstances of the offense” and Lockett’s “history,
       character, and condition,” he found by a preponderance of the evidence that (1) the
       victim had induced or facilitated the offense, (2) it was unlikely that Lockett would
       have committed the offense but for the fact that she “was under duress, coercion, or
       strong provocation,” or (3) the offense was “primarily the product of [Lockett’s]
       psychosis or mental deficiency.”
Lockett, 438 U.S. at 593-94, 98 S. Ct. at 2959. Lockett argued her death sentence was invalid
because the statute did not permit the sentencing judge to consider, as mitigation, evidence of
Lockett’s “character, prior record, age, lack of specific intent to cause death, and her relatively
minor part in the crime.” Id. at 597, 98 S. Ct. at 2961.

                                                 54
Court plurality discussed “the concept of individualized sentencing,” stressing

“[t]he need for treating each defendant in a capital case with that degree of respect

due the uniqueness of the individual.” Id. at 602, 605, 98 S. Ct. at 2963, 2965.

The Supreme Court plurality noted the “historical repudiation” of mandatory death

sentences for certain crimes, and how “the imposition of death by public authority

is so profoundly different from all other penalties.” Id. at 604-05, 98 S. Ct. at

2964-65. The Supreme Court plurality concluded that in capital cases, “the

fundamental respect for humanity underlying the Eighth Amendment . . . requires

consideration of the character and record of the individual offender and the

circumstances of the particular offense as a constitutionally indispensable part of

the process of inflicting the penalty of death.” Id. at 604, 98 S. Ct. at 2964

(quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991

(1976) (plurality opinion)) (emphasis added). The Supreme Court plurality

“conclude[d] that the Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital case, not be precluded from

considering, as a mitigating factor, any aspect of a defendant’s character or record

and any of the circumstances of the offense that the defendant proffers as a basis

for a sentence less than death.” Id. at 604, 98 S. Ct. at 2964-65 (emphasis omitted).

“To meet constitutional requirements, a death penalty statute must not preclude



                                           55
consideration of relevant mitigating factors.” Id. at 608, 98 S. Ct. at 2967. The

Supreme Court held the Ohio statute invalid because it permitted consideration of

only three mitigating factors.22 Id.

       A few years later, a Supreme Court majority followed Lockett in Eddings v.

Oklahoma, where a capital defendant presented mitigating evidence about his

troubled childhood and emotional disorders, but the Oklahoma courts ruled that the

sentencer could not consider that mitigating evidence. 455 U.S. 104, 105-10, 102

S. Ct. 869, 872-74 (1982).23 The Oklahoma statute provided that “evidence may be

presented [in sentencing] as to any mitigating circumstances or as to any of the

aggravating circumstances enumerated in this act.” Id. at 106, 102 S. Ct. at 872.

The sentencing judge, however, stated he could not “consider the fact of this young

man’s violent background.” Id. at 109, 102 S. Ct. at 873. The Oklahoma appellate

court affirmed, effectively excluding family history as a factor excusing or

mitigating the capital defendant’s behavior. See id. at 109-10, 102 S. Ct. at 874

(citing Eddings v. State, 616 P.2d 1159, 1170 (Okla. Crim. App. 1980)).

       The Supreme Court in Eddings found “that the limitations placed by these


       22
         Lockett participated in the murder with three other persons, was tried separately, and
thus had no severance issue. See Lockett, 438 U.S. at 591, 98 S. Ct. at 2958.
       23
         Eddings pled nolo contendere to the murder charge and had only a penalty phase
hearing. Eddings, 455 U.S. at 106, 102 S. Ct. at 872. Eddings had no co-defendants and thus no
severance issue.

                                                56
[Oklahoma] courts upon the mitigating evidence they would consider violated the

rule in Lockett.” Id. at 113, 102 S. Ct. at 876. The Eddings Court described

Lockett as “the product of considerable history reflecting the law’s effort to

develop a system of capital punishment at once consistent and principled but also

humane and sensible to the uniqueness of the individual.” Id. at 110, 102 S. Ct. at

874 (emphasis added). The Eddings Court reasoned that “[j]ust as the State may

not by statute preclude the sentencer from considering any mitigating factor,

neither may the sentencer refuse to consider, as a matter of law, any relevant

mitigating evidence.” Id. at 113-14, 102 S. Ct. at 876-77. Further, the sentencer

“may determine the weight to be given relevant mitigating evidence,” but “may not

give it no weight by excluding such evidence from their consideration.” Id. at 114-

15, 102 S. Ct. at 877.

      Next came the capital sentencing case of Penry v. Lynaugh, 492 U.S. 302,

109 S. Ct. 2934 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S.

304, 122 S. Ct. 2242 (2002), where the Supreme Court vacated Penry’s death

sentence, stating, “To provide the individualized sentencing determination required

by the Eighth Amendment, . . . the sentencer must be allowed to consider

mitigating evidence.” 492 U.S. at 316, 109 S. Ct. at 2945. Texas’s statute directed

that the jury would decide Penry’s sentence by answering three questions, called



                                          57
“special issues.”24 The Supreme Court previously had upheld that statute,

concluding that “the special issues would be interpreted broadly enough to permit

the sentencer to consider all of the relevant mitigating evidence a defendant might

present in imposing sentence.” Id. at 315, 109 S. Ct. at 2945. Although Penry

presented mitigating evidence of mental retardation, organic brain damage, and a

childhood of deprivation and physical abuse, the jury was given only the three

questions and was never instructed that it could consider and give effect to Penry’s

mitigating evidence in imposing sentence.25 Id. at 320, 322, 109 S. Ct. at 2947-48.

The Penry Court stressed that “[u]nderlying Lockett and Eddings is the principle

that punishment should be directly related to the personal culpability of the

criminal defendant.” Id. at 319, 109 S. Ct. at 2947. In Lockett, Eddings, and

Penry, “the constitutional defect lay in the fact that relevant mitigating evidence



       24
          Penry would receive life imprisonment unless the jury unanimously answered “yes” to
all three: (1) whether Penry’s conduct “was committed deliberately and with the reasonable
expectation that the death of the deceased or another would result”; (2) whether it was probable
that Penry “would commit criminal acts of violence that would constitute a continuing threat to
society”; and (3) whether Penry’s conduct “was unreasonable in response to the provocation, if
any, by the deceased.” Penry, 492 U.S. at 310, 109 S. Ct. at 2942. The jury answered yes to all
three special issues. Id. at 311, 109 S. Ct. at 2943.
       25
         The Texas trial court denied Penry’s motion to instruct the jury that: (1) it was
authorized to issue “a discretionary grant of mercy based upon the existence of mitigating
circumstances”; (2) it “may take into consideration all of the evidence whether aggravating or
mitigating in nature which was submitted in the full trial of the case”; and (3) the State had to
“show beyond a reasonable doubt that any aggravating circumstances found to exist outweigh
any mitigating circumstances” before the death penalty could be imposed. Id. at 310-11, 109 S.
Ct. at 2942.

                                                58
was placed beyond the effective reach of the sentencer.” Johnson v. Texas, 509

U.S. 350, 366, 113 S. Ct. 2658, 2668 (1993) (quoting Graham v. Collins, 506 U.S.

461, 475, 113 S. Ct. 892, 902 (1993)).

        Recently, the Supreme Court again examined a Texas death penalty statute

in Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654 (2007).26 The trial

court instructed the jury to decide only two special issues: (1) whether the

defendant’s conduct that caused the victim’s death was “committed deliberately

and with the reasonable expectation that the death of the deceased or another

would result”; and (2) whether there was “a probability that the defendant . . .

would commit criminal acts of violence that would constitute a continuing threat to

society.” Id. at 238, 127 S. Ct. at 1660. The Texas statute mandated a death

sentence if the jury answered yes to both special issues.27 Id. at 239, 127 S. Ct. at

1660.

        Abdul-Kabir presented mitigating evidence from his mother, aunt, and


        26
         The Texas statute then in effect “instruct[ed] the jury to decide ‘[w]hether, taking into
consideration all of the evidence, including the circumstances of the offense, the defendant’s
character and background, and the personal moral culpability of the defendant, there is a
sufficient mitigating circumstance or circumstances to warrant that a sentence of life
imprisonment without parole rather than a death sentence be imposed.’” Abdul-Kabir, 550 U.S.
at 238 n.2, 127 S. Ct. at 1660 n.2 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(e)(1)
(Vernon 2006)) (second alteration in original).
        27
          Although Abdul-Kabir committed the capital murder with two other persons, the
opinion does not mention whether he was tried together with the others or if Abdul-Kabir was
tried alone. There was no severance issue raised in Abdul-Kabir.

                                                59
mental health experts. Id. at 239-40, 127 S. Ct. at 1660-61. The trial court refused

Abdul-Kabir’s requested jury instructions that would have authorized a negative

answer to either of the special issues based on mitigation evidence. Id. at 242, 127

S. Ct. at 1662. The jury answered “yes” to both special issues, and Abdul-Kabir

was sentenced to death. Id.

      The Supreme Court observed that the sentencing process is “fatally flawed”

when “the jury is not permitted to give meaningful effect or a ‘reasoned moral

response’ to a defendant’s mitigating evidence – because it is forbidden from doing

so by statute or a judicial interpretation of a statute.” Id. at 264, 127 S. Ct. at 1675.

Abdul-Kabir’s mitigating evidence had relevance to his moral culpability beyond

the scope of the two special questions in the Texas statute, and the denial of his

requested instructions “provided the jury with no vehicle for expressing its

‘reasoned moral response’ to that evidence.” Id. at 252-53, 256-57, 127 S. Ct. at

1668, 1670 (quoting Franklin v. Lynaugh, 487 U.S. 164, 185, 108 S. Ct. 2320,

2333 (1988) (O’Connor, J., concurring)). “[S]entencing juries must be able to give

meaningful consideration and effect to all mitigating evidence that might provide a

basis for refusing to impose the death penalty on a particular individual.” Id. at

246, 127 S. Ct. at 1664.

      In summary, Lockett and its progeny establish that Puiatti has a



                                            60
constitutional right under the Eighth and Fourteenth Amendments not only (1) to

present any relevant mitigating evidence as to his unique, individual background,

character, and record and the circumstances of his crime, but also (2) to have the

sentencing jury or judge give meaningful consideration and effect to his mitigation

evidence without such restrictions by state statute, judicial interpretation, or jury

instructions.28 Abdul-Kabir, 550 U.S. at 264-65, 127 S. Ct. at 1675; Eddings, 455

U.S. at 112-15, 102 S. Ct. at 875-77; Lockett, 438 U.S. at 604-05, 98 S. Ct. at

2964-65.

       The core substantive ingredient in the constitutional right to an

“individualized sentencing” is mitigation evidence relevant to the capital defendant

as an individual or unique person (whether his background, character, mental

health record, or circumstances of his crime), which a jury may consider to assess

personal moral culpability and to determine an individualized sentence. None of

these Supreme Court cases mentions joinder or severance. The constitutional right

involved is not based on, or tied to, a separate trial. Rather, the constitutional right

stems from the need for a presentation of, and consideration of, mitigation



       28
          The lesson of Lockett and its progeny is that “[t]he Constitution requires that the
sentencer be allowed to consider and give effect to evidence offered in mitigation, but it does not
dictate the effect that must be given once the evidence is considered; it does not require the
sentencer to conclude that a particular fact is mitigating or to give it any particular weight.”
Schwab v. Crosby, 451 F.3d 1308, 1329 (11th Cir. 2006).

                                                61
evidence relevant to the defendant as a unique individual. With this background,

we turn to Puiatti’s claims about his joint trial.

C.    Puiatti’s Claims on Appeal

      As noted earlier, Puiatti claims that the trial court’s denial of his severance

motion (and resulting joint trial) violated his constitutional right to an

individualized sentencing determination. For numerous reasons, Puiatti’s claim

wholly fails.

      First, Puiatti was not prevented from presenting any mitigating evidence.

Puiatti has not proffered a single piece of evidence he was unable to put before the

jury or judge for consideration by virtue of the joint penalty phase.

      Second, no state statute nor judicial interpretation nor jury instruction

restricted the jury or judge from considering, or acting upon, Puiatti’s mitigation

evidence. Rather, the Florida trial court appropriately instructed the jury during

the penalty phase to carefully weigh and consider “all of” the evidence presented,

stating, “Before you ballot you should carefully weigh, sift and consider the

evidence, and all of it, realizing that human life is at stake, and you should bring to

bear your best judgment in reaching your advisory sentence.”

      The state trial court also instructed the jury about the potential sentences for




                                            62
Glock and Puiatti separately and individually.29 “Jurors routinely serve as

impartial factfinders in cases that involve sensitive, even life-and-death matters”

and “[i]n those cases, as in all cases, juries are presumed to follow the court’s

instructions.” Hammond v. Hall, 586 F.3d 1289, 1334 (11th Cir. 2009) (quoting

CSX Transp., Inc. v. Hensley, — U.S. —, 129 S. Ct. 2139, 2141 (2009)). Courts

presume that the jury heard, understood, and followed the court’s instructions.

Richardson, 481 U.S. at 208-11, 107 S. Ct. at 1708-09.

      Third, although Puiatti attempts to connect and intertwine severance with his

constitutional right to an individualized sentencing determination, we can locate,

and Puiatti has cited, no Supreme Court decision doing so. Lockett and its progeny

do not address joint penalty phases or say that the presence of a co-defendant at a


      29
        The state trial court instructed the jury, in pertinent part:
              Now, if a majority of the jury determine[s] that Robert Glock, II, should be
      sentenced to death, your advisory sentence will be a majority of the jury, by a vote
      of – and a number, whatever number voted so voted advise and recommend to the
      Court that it impose the death penalty upon Robert D. Glock, II.
              If a majority of the jury determine[s] that Carl Puiatti should be sentenced to
      death, your advisory sentence will be a majority of the jury, by a vote of – and
      indicate whatever that vote is, advise and recommend to the Court that it impose the
      death penalty upon Carl Puiatti.
              On the other hand, if by six or more votes, the jury determines that Robert D.
      Glock, II, should not be sentenced to death, your advisory sentence will be the jury
      advises and recommends to the Court that it impose a sentence of life imprisonment
      upon Robert D. Glock, II, without possibility of parole for twenty-five years.
              And if by six or more votes the jury determines that Carl Puiatti should not
      be sentenced to death, your advisory sentence will be the jury advises and
      recommends to the Court that it impose a sentence of life imprisonment upon Carl
      Puiatti without possibility of parole for twenty-five years.


                                                63
capital defendant’s penalty phase trial has any Eighth Amendment implications

whatsoever. None of the Lockett line of cases relates to severance or helps

Puiatti’s claim at all. Puiatti, like the district court, cites no precedent that suggests

a joint penalty trial is improper for co-defendants who were properly joined in the

guilt phase. The Supreme Court has never intimated, much less held, that the

special concerns in capital cases require, or even suggest, that severance is

necessary.

       Fourth, while we consider Puiatti’s § 2254 appeal separately from Glock’s,

this Court already has rejected Glock’s claim that a joint trial deprived him of an

individualized sentencing determination. See Glock V, 84 F.3d at 385-86

(rejecting as non-meritorious Glock’s claim “that his sentence should be set aside

because . . . the trial court refused to sever his sentencing proceeding from his

co-defendant’s, thereby depriving him of individualized sentencing”).

       For all four reasons, Puiatti has not shown the state trial court’s severance

denial deprived Puiatti of his constitutional right to an individualized sentencing

determination.

       We could stop here but for the fact that Puiatti, as a pre-AEDPA petitioner,

also tries to advance a new constitutional theory.30 Even though a separate penalty


       30
        Under AEDPA, a petitioner must show the state court’s decision denying his claim
“was contrary to, or involved an unreasonable application of, clearly established Federal law, as

                                                64
trial is not part of his constitutional right to an individualized sentencing

determination, Puiatti argues that the severance denial and joint penalty phase,

under the facts of his case, prejudiced him to the point of effectively denying his

constitutional right to an individualized sentencing decision or at least a fair

hearing. A threshold problem for Puiatti is that he has not shown any severance

error at all, much less severance error rising to the level of a constitutional

violation.

       For example, Puiatti has not satisfied the prejudice requirement at Zafiro’s

first step for analyzing severance claims. Puiatti claims he was prejudiced because

his mitigation theory – substantial domination by Glock – was undermined by

Glock’s mitigation defense that Glock was a follower, too. However, Glock’s

expert Dr. Mussenden, although testifying Glock was a follower, also testified that

Glock’s role in Ritchie’s murder was an “expression of [Glock]’s anger and

resentment towards women and all of the failure and rejection he had experienced

all his life.”31 In closing, Glock’s counsel never argued that Glock was under the

substantial domination of Puiatti at the time of the crime and expressly disclaimed


determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase
“clearly established Federal law” refers “to the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state-court decision.” Spencer v. Sec’y, Dep’t of
Corr., 609 F.3d 1170, 1178 (11th Cir. 2010) (brackets omitted). Here, however, Puiatti filed his
§ 2254 petition before the enactment of AEDPA.
       31
            Dr. Mussenden had not examined Puiatti.

                                                65
any argument to that effect.

       If anything, Glock and Puiatti presented similar mitigation theories – counsel

for Puiatti and Glock both argued their clients were insecure, easily led men who

were under stress because of personality problems, unfortunate circumstances, and

poor relationships with their families, but who nevertheless would not have

committed the murder but for the presence and association of the other. Simply

put, the defendants did not present antagonistic mitigation defenses.

       In any event, the Supreme Court has held expressly that “[m]utually

antagonistic defenses are not prejudicial per se.” Zafiro, 506 U.S. at 538, 113 S.

Ct. at 938. “The Supreme Court has held that co-defendants do not suffer

prejudice simply because one co-defendant’s defense directly inculpates another,

or it is logically impossible for a jury to believe both co-defendants’ defenses.”

Blankenship, 382 F.3d at 1125 (discussing Zafiro). This also underscores the vital

role of a joint trial in preventing inconsistent verdicts.

       Puiatti also complains that Glock’s counsel (as well as the State) got to

cross-examine Puiatti’s mental health experts, Drs. DelBeato and Meadows. This

also did not prejudice Puiatti. Glock’s counsel’s questioning of DelBeato and

Meadows was brief, with only a few questions each. Glock’s counsel had

DelBeato and Meadows admit that neither expert had examined Glock and that



                                            66
whether Puiatti was influenced by Glock depended on Glock’s psyche as well as

Puiatti’s.32 Glock’s counsel’s cross-examination did not cause the introduction of

irrelevant or incompetent evidence. “[A] fair trial does not include the right to

exclude relevant and competent evidence.” Zafiro, 506 U.S. at 540, 113 S. Ct. at

938.

       Puiatti also argues that the fact that Glock testified, and Puiatti did not,

prejudiced him. Puiatti points to no case in which the Supreme Court or this Court

has held that a non-testifying defendant is prejudiced by the mere fact that one of



       32
        Glock’s counsel’s entire cross-examination of Dr. DelBeato was:
       Q.     Dr. DelBeato, is it true that most people are more easily influenced when
              they’re under stress?
       A.     Yes.
       Q.     And is it fair to say that whether or not somebody is being influenced or
              manipulated by another, that [not] only depends on the person, the
              psychological profile of the person that’s being influenced, but also the
              possibility of a person who’s in the position to influence the psychological
              profile?
       A.     There would be a relationship.
       Q.     And you have never examined this man?
       A.     No.
Glock’s counsel’s cross-examination of Dr. Meadows was similarly brief:
       Q.     Dr. Meadows, whether – is it fair to say that whether or not Mr. Puiatti was
              under substantial domination of another person at the time of the offense
              would depend on the psychological profile of the other person?
       A.     Without understanding, you know, in detail, I would say it is possible, yes.
       Q.     Have you ever done any tests or reviewed any records of Robert Glock, II?
       A.     The confession, um, I have had some sketchy data about his background and
              temperament from the defendant, from Mr. Puiatti’s counselor.
       Q.     Okay. But you have not seen any psychological testing, reports of Mr.
              Glock, is that correct?
       A.     That’s correct.


                                               67
his co-defendants chooses to testify. In fact, we have concluded that “favorable

observation of the willingness of one of several co-defendants to testify does not

constitute an impermissible comment on the failure of the other co-defendants to

testify.” United States v. O’Neill, 767 F.2d 780, 786 (11th Cir. 1985) (quoting

United States v. Vera, 701 F.2d 1349, 1363 (11th Cir. 1983)). Moreover, Puiatti’s

argument ignores that Glock testified briefly and only about the remorse he felt for

Ritchie’s murder. Puiatti used multiple penalty-phase witnesses to testify that he

too was remorseful. Puiatti was able to, and did, impart similar testimony to the

jury without testifying.33 If anything, the fact that Glock testified helped Puiatti

because Glock did not deny the joint confession’s statements that Glock suggested

the idea of killing Ritchie and Glock fired the last two shots that killed her.

       Puiatti also argues the fact that Glock argued the mitigating factor of no

significant prior criminal history applied to him highlighted Puiatti’s lack of ability

to argue this factor for himself. However, Puiatti’s own penalty-phase witnesses

testified that Puiatti was involved in a burglary and was on probation at the time of

Ritchie’s murder. Even in a separate penalty trial, the jury would know Puiatti



       33
         We reject Puiatti’s argument that he was prejudiced by the fact that Glock’s penalty-
phase witnesses testified after Puiatti’s expert Dr. DelBeato but before Puiatti’s other witnesses,
thereby splitting Puiatti’s case. Not only does this argument rest on a canard that jurors are
unable to account for an out-of-order witness, but Puiatti’s own counsel requested that Dr.
DelBeato testify first in order to accommodate Dr. DelBeato’s schedule.

                                                 68
already had a criminal history.34 There was no vast disparity in either the quality or

quantity of mitigation evidence presented by Puiatti and Glock.

         The bottom line is Puiatti’s prejudice claim essentially rests upon an implicit

contention that a separate penalty trial is required whenever a co-defendant’s

presence might reduce a defendant’s chance to avoid a death sentence. We have

found nothing in severance law or Eighth Amendment jurisprudence to support this

position. See Zafiro, 506 U.S. at 540, 113 S. Ct. at 938 (stating that “it is well

settled that defendants are not entitled to severance merely because they may have

a better chance of acquittal in separate trials”). Puiatti has failed to show any

specific way that he was prejudiced by being tried jointly with Glock at the penalty

phase.

         Indeed, the specific facts of this case made a joint penalty phase particularly

appropriate. Puiatti and Glock acted together in planning and effecting the

abduction, robbery, and murder of Ritchie. Both Puiatti and Glock fired shots at

Ritchie. It was Puiatti who was the first to fire shots at and strike the helpless

victim from close range. Puiatti and Glock issued a joint interlocking confession

that agreed on how many shots were fired, who fired each of them, and when.



         34
          And even in a separate penalty phase, the State would have been entitled to point to
Glock’s lack of prior criminal history to rebut a potential argument by Puiatti that Puiatti was an
easily influenced man who was following Glock’s lead in murdering Ritchie.

                                                69
Puiatti and Glock kept driving by and shooting Ritchie until they were sure she

would die. As the state trial court aptly noted, this case is a “classic example of

why joint defendants ought to be [tried] together in order to get justice.”

       In fact, Puiatti’s joint trial with Glock avoided the inequity of inconsistent

verdicts and one capital defendant going second with the benefits of previewing the

State’s evidence and arguments. See Richardson, 481 U.S. at 210, 107 S. Ct. at

1708-09 (stating, “Joint trials generally serve the interests of justice by avoiding

the scandal and inequity of inconsistent verdicts” and by not “randomly favoring

the last-tried defendants who have the advantage of knowing the prosecution’s case

beforehand”). The Lockett-Eddings-Penry-Abdul-Kabir principle that the

sentencer must be allowed to consider and give effect to “all relevant mitigating

evidence,” see Eddings, 455 U.S. at 117, 102 S. Ct. at 878, is quite compatible with

a joint trial. To the extent any arguable tension may exist between joint trials and

individualized sentencing, it did not occur here. See Bernard, 299 F.3d at 475

(noting potential tension between joinder and a defendant’s right to an

individualized capital sentencing decision, but affirming defendant’s death

sentence in a joint trial).

       If any two capital co-defendants could be properly joined in a penalty phase,

it was Puiatti and Glock. Puiatti has not shown that his severance denial violated



                                           70
any constitutional right.

                                 V. CONCLUSION

      Accordingly, we reverse the district court’s judgment vacating Puiatti’s

death sentence. On remand, the district court shall consider and resolve all of

Puiatti’s other constitutional claims as to his death sentence.

      REVERSED AND REMANDED.




                                           71
