Case: 18-13801 Date Filed: 02/10/2020 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13801 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-05385-ELR
JOSEPH L. SMITH,
Petitioner-Appellant,
versus
WARDEN, MACON STATE PRISON,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 10, 2020)
Before JORDAN, BRANCH and HULL, Circuit Judges.
PER CURIAM: Case: 18-13801 Date Filed: 02/10/2020 Page: 2 of 21
Joseph Smith is a Georgia prisoner serving a life sentence plus 30 years for
involuntary manslaughter, felony murder, cruelty to children, aggravated assault,
false imprisonment, and reckless conduct in connection with the death of Smith’s
eight-year-old son Josef. Smith appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus.
During closing arguments at trial, the state prosecutor lit candles on a
birthday cake and sang happy birthday to Smith’s deceased son. Smith’s § 2254
petition asserted that: (1) the state prosecutor’s conduct violated his Fourteenth
Amendment due process right to a fair trial; and (2) his trial counsel’s failure to
object to the state prosecutor’s conduct violated his Sixth Amendment right to
effective assistance of counsel. The Georgia Supreme Court held on direct appeal
that Smith’s trial counsel was not constitutionally ineffective for failing to object.
For the reasons explained below, we conclude that the Georgia Supreme Court’s
decision was not contrary to, or an unreasonable application of, clearly established
federal law or based on an unreasonable determination of the facts in light of the
evidence presented to the state court. See 28 U.S.C. § 2254(d). Thus, we affirm
the district court’s denial of Smith’s claims.
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I. PROCEDURAL HISTORY
As the parties are already familiar with the facts of Josef’s injuries and death
that underpin Smith’s state court convictions, we do not recount them here and
instead address them in our discussion only as necessary.
A. Indictment and Trial in State Court
In 2006, a state court grand jury indicted petitioner Smith and his wife
Sonya on charges of malice murder (Count 1), three counts of felony murder
(Counts 2, 3, and 4), five counts of cruelty to children in the first degree (Counts 5,
8, 10, 12, and 14), three counts of aggravated assault (Counts 6, 9, and 11), and
two counts of false imprisonment (Counts 7 and 13). Smith and Sonya pled not
guilty to all counts.
After eight days of trial, the parties’ counsel gave their closing arguments.
At the end of her rebuttal, the state prosecutor had the lights in the courtroom
dimmed, removed a birthday cake from a bag, lit the candles, and then stated the
following:
I was thinking about something the other day. I was thinking about birthdays. Happy birthday to you. Happy birthday to you. Happy birthday, dear Josef. Happy birthday to you. There are eight candles on that cake. But you know what’s not on there? One more candle for his 9th birthday, because he didn’t get to see that. You may think that’s harsh, but it’s true. And it was at the hands of those people.
Neither defense counsel objected to the prosecutor’s actions, and the state trial
court did not issue a curative instruction. 3 Case: 18-13801 Date Filed: 02/10/2020 Page: 4 of 21
Following deliberations, the jury found Smith and his wife Sonya guilty of
the lesser included offense of involuntary manslaughter in Count 1, felony murder
in Count 2, cruelty to children in Counts 5, 8, 10 and 12, aggravated assault in
Counts 6, 9, and 11, false imprisonment in Count 13, and the lesser included
offense of reckless conduct in Count 14. 1 The jury found Smith and Sonya not
guilty of the felony murder charges in Counts 3 and 4 and the false imprisonment
charge in Count 7. The state trial court imposed a life sentence, plus 30 years, on
both Smith and Sonya.
B. Motion for a New Trial
After retaining new counsel, Richard Allen, Smith filed an amended motion
for a new trial. Smith argued, among other things, that his trial counsel was
constitutionally ineffective and that the state prosecutor’s conduct during closing
argument—singing happy birthday with a cake and candles—was a stunt designed
to inflame the jury’s passion and “the passivity of the [trial] Court and defense
counsel in allowing this stunt” denied Smith a fair trial under the Sixth and
Fourteenth Amendments.
During a hearing on the motion, Smith’s trial counsel, Manubir Arora,
testified that he was surprised by the prosecutor’s unprecedented conduct but
1 The felony murder charged in Count 2 alleged that on October 8, 2003, Smith caused Josef’s death “while in the commission of a felony, to wit: Cruelty to Children in the First Degree.” 4 Case: 18-13801 Date Filed: 02/10/2020 Page: 5 of 21
quickly decided not to object to it. He explained that he did not object because he
“didn’t want to call any more attention” to it as it was “so absurd,” and he thought
“it would turn the jurors off.” On cross-examination, trial counsel further
explained his strategic decision not to object once he realized what the prosecutor
was doing, stating, “What is there left to object to? At that point, the damage had
been done and if I get up and say ‘Judge, I object,’ what are we going to do? Blow
the candles out and put it away and say disregard something so preposterous.”
Trial counsel noted that prosecutors sometimes say “over the top” or “crazy”
things and “you just sort of go with it,” and “the only time you can really object
and get any benefit is had I known it was coming.” Trial counsel stated that the
prosecutor snapped her fingers, a deputy turned out the lights, and the cake was
“already out there” before he could object. Trial counsel added that the
prosecutor’s actions “caught everybody by surprise,” that he thought “it was too
late to object” and that an objection at that point would have caused a stir and
emphasized the prosecutor’s actions even more.
The state trial court subsequently found that trial counsel’s performance was
not deficient and denied Smith’s motion for a new trial.
C. Direct Appeal in State Court
In his direct appeal to the Georgia Supreme Court, Smith claimed that the
trial court erred in denying his motion for a new trial based on trial counsel’s
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ineffective assistance. 2 In his brief, Smith argued that the state prosecutor’s
conduct “was so egregious that counsel’s objection was not necessary” and that in
addition to his Sixth Amendment right to effective counsel, his Fourteenth
Amendment right to a fair trial was violated. While Smith referred to a Fourteenth
Amendment violation, he did not raise this claim as a separate enumeration of error
in his direct appeal brief.
In 2010, the Georgia Supreme Court consolidated Smith’s appeal with his
wife’s appeal and issued a single opinion affirming their convictions and
sentences. See Smith v. State, 703 S.E.2d 629, 632-33 (Ga. 2010). The Georgia
Supreme Court concluded that trial counsel was not ineffective for failing to object
to the prosecutor’s conduct during closing arguments. Id. at 637-38. The Georgia
Supreme Court pointed to trial counsel’s testimony at the hearing on the motion for
a new trial that he “made a strategic decision not to object to the ‘Happy Birthday’
song during closing argument” and that he “thought that the ‘Happy Birthday’
song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the
jurors off’ and that he should not call any more attention to it by objecting to it.”
Id. at 637. The Georgia Supreme Court cautioned state prosecutors not to “pursue
stunts and antics during their closing arguments that are designed merely to appeal
2 The Supreme Court of Georgia has exclusive jurisdiction over an appeal from a murder conviction. See Ga. Const. art. 6, § 6, ¶ 3(8). 6 Case: 18-13801 Date Filed: 02/10/2020 Page: 7 of 21
to the prejudices of jurors,” and acknowledged that “the trial court would have
been well within its right to control the courtroom by putting an end to the display
of the prosecutor, even absent an objection from defense counsel.” Id.
Nonetheless, the Georgia Supreme Court determined that “it was reasonable
for [Smith’s trial counsel] to pursue a strategy that would allow the potentially
inappropriate antics of the prosecutor to backfire against her,” and that there was
“no merit to [Smith’s] claim that [his trial counsel] provided ineffective assistance
in this regard.” Id. at 637-38. The Georgia Supreme Court further stated, “In this
connection, it cannot be said that [trial counsel] was incorrect in his belief that the
jurors may have been turned off by the closing argument, as the jury found [Smith]
not guilty on several of the charges against him, including two of the felony
murder charges, one of the first degree cruelty to children charges, and the malice
murder charge.” Id. at 638.
The Georgia Supreme Court did not separately address the due process
argument made in Smith’s appellate brief as part of his ineffective assistance
claim. However, in addressing his wife Sonya’s claim that the state trial court had
erred by allowing the prosecutor’s conduct to go uncorrected, the Georgia Supreme
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Court concluded that this argument was waived because her trial counsel failed to
object to the incident. Id. at 633. 3
The United States Supreme Court denied Smith’s petition for writ of
certiorari. Smith v. Georgia, 564 U.S. 1038, 131 S. Ct. 3061 (2011).
D. State Petition for Habeas Corpus
In 2012, in state court, Smith filed a counseled application for a writ of
habeas corpus, which was amended several times and raised multiple grounds.
Among other things, Smith argued that his due process rights (Ground 1(a)) and
his Sixth Amendment right to effective assistance (Ground 1(b)) were violated by
the prosecutor’s conduct during closing arguments. Notably, Smith asserted
several ineffective assistance claims against his post-trial counsel, Richard Allen,
who represented him during his motion for a new trial and for part of his direct
appeal. 4 But, with respect to Ground 1, Smith did not claim counsel Allen was
constitutionally ineffective for failing to raise a separate due process claim on
direct appeal.
3 The Georgia Supreme Court explained that, under Georgia law, unpreserved errors in criminal proceedings, other than in death penalty cases, are not reviewed for plain error and are waived. Id. at 633. For completeness, two justices of the Georgia Supreme Court dissented as to the claims based on the birthday stunt. Id. at 638-42. 4 Allen testified that his representation of Smith ended after he filed the direct appeal brief, but before oral argument occurred. 8 Case: 18-13801 Date Filed: 02/10/2020 Page: 9 of 21
In August 2014, the state habeas court held an evidentiary hearing. At the
hearing, Smith’s post-trial counsel Allen testified that he believed the prosecutor’s
conduct during closing arguments was so egregious that it was clear error.
However, in preparing the appeal brief, counsel Allen believed that he could raise
the issue only in the context of an ineffective assistance claim and “possibly could
have interposed” a due process claim because Smith’s trial counsel had failed to
make a contemporaneous objection.
In May 2016, the state habeas court denied Smith’s application. As to
Smith’s due process claim in Ground 1(a), the state habeas court found that this
claim was not enumerated as error on direct appeal and thus was procedurally
defaulted under O.C.G.A. § 9-14-48(d). The state habeas court further concluded
that Smith had not established cause to excuse the default “in the form of
ineffective assistance of post-trial counsel” or “actual prejudice.”
As to Smith’s ineffective assistance of trial counsel claim in Ground 1(b),
the state habeas court determined that the Georgia Supreme Court had already
found that “this claim lacked merit, finding that trial counsel’s decision not to
object was reasonable” and that it was bound by that ruling. On December 11,
2017, the Georgia Supreme Court denied Smith’s application for a certificate of
probable cause to appeal.
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E. Federal § 2254 Proceedings
On December 22, 2017, in the federal district court, Smith filed his § 2254
petition raising ten claims. In Ground Two, Smith asserted claims that his Sixth
Amendment right to effective assistance of counsel and Fourteenth Amendment
due process right to a fair trial were violated by the prosecutor’s unobjected-to
conduct during closing arguments.
A magistrate judge issued a report and recommendation (“R&R”),
recommending that the district court deny Smith’s § 2254 petition. Regarding the
ineffective counsel claim, the R&R concluded that the Georgia Supreme Court was
reasonable in its determination that trial counsel made a strategic decision not to
object and that it did not unreasonably apply Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), to conclude that trial counsel’s performance was not
deficient. As for the due process claim, the R&R concluded that it was
procedurally defaulted because Smith had not raised a separate ineffective counsel
claim during his state habeas proceedings that post-trial counsel Allen was
ineffective for failing to raise the due process claim on direct appeal as a separate
enumeration of error. Therefore, the due process claim was barred from review in
federal court.
The district court adopted the R&R over Smith’s objections and denied
Smith’s § 2254 petition. The district court agreed that the Georgia Supreme
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Court’s conclusion that trial counsel was not ineffective was entitled to deference
under § 2254(d) and that Smith’s due process claim was procedurally defaulted.
The district court granted a certificate of appealability as to Smith’s ineffective
counsel and due process claims relating to the prosecutor’s conduct during her
closing argument.
II. DISCUSSION
A. Ineffective Assistance of Trial Counsel Claim
Pursuant to § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal courts may grant habeas relief on claims
previously adjudicated on the merits in state court only if the state court’s decision
was (1) “contrary to, or involved an reasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or
(2) “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).5
Section 2254(d) “imposes a highly deferential standard for evaluating state-
court rulings and demands that state-court decisions be given the benefit of the
doubt.” Hardy v. Cross, 565 U.S. 65, 66, 132 S. Ct. 490, 491 (2011) (quotation
marks omitted). “To justify federal habeas relief, the state court’s decision must be
5 In reviewing the district court’s denial of a § 2254 petition, we review de novo questions of law and mixed questions of law and fact, and we review findings of fact for clear error. Raleigh v. Sec’y, Fla. Dep’t of Corrs., 827 F.3d 938, 948 (11th Cir. 2016). 11 Case: 18-13801 Date Filed: 02/10/2020 Page: 12 of 21
so lacking in justification that there was an error . . . beyond any possibility for
fairminded disagreement.” Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d
1298, 1301 (11th Cir. 2019) (internal quotation marks omitted). The standard is
“doubly deferential” when evaluating the performance prong of a claim of
ineffective assistance of counsel is evaluated under § 2254(d)(1). Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 1420 (2009). “The question is
not whether a federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Id. (quotation marks omitted).
To establish constitutionally ineffective counsel under Strickland, the § 2254
petitioner must show that his Sixth Amendment right to counsel was violated
because (1) his counsel’s performance was deficient, and (2) the deficient
performance prejudiced his defense. Strickland, 466 U.S. at 687, 697, 104 S. Ct. at
2064-65, 2070. We need not “address both components of the inquiry if the
defendant makes an insufficient showing on one.” Id. at 697, 104 S. Ct. at 2069.
Here, the record establishes that the Georgia Supreme Court’s decision
denying Smith’s ineffective counsel claim was not contrary to, or an unreasonable
application of, Strickland and was not based on an unreasonable determination of
facts. See 28 U.S.C. § 2254(d). The Georgia Supreme Court found that, as a
matter of strategy, Smith’s trial counsel decided not to object to the prosecutor’s
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“absurd” and “over the top” conduct during closing arguments. While Smith’s trial
counsel admitted that he was taken by surprise by the prosecutor’s conduct, he did
not say that his surprise was the reason he failed to object. Rather, trial counsel’s
full testimony makes clear that once he overcame his initial shock, he made a
conscious decision not to object. Specifically, trial counsel explained that he
believed any objection at that point could not have undone the damage but would
have caused an additional stir and called more attention to the prosecutor’s stunt.
By trial counsel’s calculation, the better course of action was to let the objection go
and hope that the jurors would be turned off by the prosecutor’s outrageous
conduct. Given trial counsel’s testimony explaining why he did not object, we
cannot say the Georgia Supreme Court’s fact findings were unreasonable.
Moreover, the Georgia Supreme Court’s determination—that trial counsel’s
strategic decision did not constitute deficient performance—to which the state
habeas court was bound, was not an unreasonable application of Strickland. As
Strickland recognized, a reviewing court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.”
466 U.S. at 689, 104 S. Ct. at 2065 (quotation marks omitted). Trial counsel’s
strategic decision not to make an objection, even where the error is plain, does not
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necessarily constitute deficient performance. See Gordon v. United States, 518
F.3d 1291, 1300 (11th Cir. 2008). To overcome the strong presumption that trial
counsel’s strategic decision was reasonable, the petitioner must establish that “no
competent counsel would have taken the action his counsel did take.” Johnson v.
Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011) (quotation marks omitted). Smith
has not carried that burden. Accordingly, the Georgia Supreme Court properly
applied Strickland in concluding that “it was reasonable for [trial counsel] Arora to
pursue a strategy that would allow the potentially inappropriate antics of the
prosecutor to backfire against her.” See Smith, 703 S.E.2d at 637-38.
In any event, Smith has not carried his burden to show prejudice from his
trial counsel’s failure to object to the prosecutor’s stunt. To establish prejudice
under Strickland, a petitioner must show that, but for his counsel’s deficient
performance, “there is a reasonable probability that . . . the result of the proceeding
would have been different.” 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
Here, as the Georgia Supreme Court noted, the record suggests the jury was
not taken in by the prosecutor’s stunt given that Smith was acquitted of some of the
more serious charges, including malice murder.
Further, in reviewing the sufficiency of the evidence supporting the Smiths’
convictions, the Georgia Supreme Court highlighted that Smith and his wife
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routinely beat their son Josef, see Smith, 703 S.E.2d at 633, as evidenced by the
testimony of multiple witnesses, the many different injuries, at different stages of
healing, that covered Josef’s head, torso, arms, and legs at the time of his death,
and the testimony of some witnesses that those injuries were consistent with child
abuse and the worst injuries they have ever seen. Indeed, Smith and his wife both
admitted to investigators that they had beaten Josef several times on the day he was
taken to the hospital. A medical expert testified that Josef’s death was a homicide
and resulted from trauma to his head with brain swelling that was associated with
his bruises and contusions. There was also evidence that Smith and his wife
routinely restrained Josef and locked him in a closet for long periods of time—days
and possibly weeks. Trial testimony also indicated that the wooden box in which
Josef was confined just prior to his parents’ 9-1-1 call had previously been used for
punishment.
In other words, the state presented overwhelming evidence from which the
jury could find beyond a reasonable doubt that Smith’s beatings “either materially
contributed to . . . or materially accelerated” Josef’s death, that “confining Josef to
enclosed spaces was a routine part of the family’s discipline,” and that Smith was
“directly involved in Josef’s confinement to the box, or that he encouraged the use
of the box that may have contributed to [Josef’s] death.” See Smith, 703 S.E.2d at
637. And, in light of the powerful evidence that Smith was guilty of all the counts
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of conviction—involuntary manslaughter, felony murder, cruelty to children,
aggravated assault, false imprisonment, and reckless conduct—the fact that trial
counsel failed to object to the prosecutor’s inappropriate conduct during closing
arguments does not undermine our confidence in Smith’s convictions. That is,
there is no reasonable probability that, had trial counsel objected, the result of the
trial would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at
2068.
B. Due Process Claim is Procedurally Defaulted
A federal claim is subject to procedural default where: (1) the state court
applies an independent and adequate ground of state procedure to conclude that the
petitioner’s federal claim is barred; or (2) the petitioner never raised a claim in
state court, and it is obvious that the unexhausted claim would now be procedurally
barred under state procedural rules. Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th
Cir. 1999). A state court’s procedural ruling constitutes an independent and
adequate ground if: (1) the last state court to render a judgment in the case clearly
and expressly states that it is relying on state procedural rules to resolve the federal
claim without reaching the merits of the claim; (2) the state court’s decision rests
solidly on state law grounds and is not intertwined with an interpretation of federal
law; and (3) the state procedural rule is adequate, meaning it was not applied
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arbitrarily or in an unprecedented way. Mason v. Allen, 605 F.3d 1114, 1119-20
(11th Cir. 2010); Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). 6
If a state court finds that a petitioner’s claim is procedurally defaulted after
applying an adequate and independent state law, a federal court is obligated to
respect the state court’s decision. Bailey, 172 F.3d at 1302. Procedural default
may be excused, however, if the petitioner establishes (1) cause for not raising the
claim of error on direct appeal and actual prejudice from the alleged error, or (2) a
fundamental miscarriage of justice, meaning actual innocence. McKay v. United
States, 657 F.3d 1190, 1196 (11th Cir. 2011).
In Smith’s case, his due process claim was procedurally defaulted because
the state habeas court denied that claim (Ground 1(a) in his state habeas petition)
on an independent and adequate state procedural ground—namely, because
Smith’s post-trial and appellate counsel Allen did not raise the claim as a separate
enumeration of error in Smith’s direct appeal brief to the Georgia Supreme Court.
Moreover, the state habeas court concluded that Smith had not shown either cause
or prejudice to excuse his failure to timely raise the claim on direct appeal, as
required by O.C.G.A. § 9-14-48(d).
6 Whether a state prisoner is procedurally barred from raising particular claims is a mixed question of law and fact that we review de novo. Bailey, 172 F.3d at 1302. 17 Case: 18-13801 Date Filed: 02/10/2020 Page: 18 of 21
In short, all three requirements for procedural default are met here, and
Smith does not contend otherwise. The last state court to rule on the federal due
process issue, the state habeas court, relied on a procedural ground and that
procedural ruling was not intertwined with the merits of Smith’s federal due
process claim. Smith does not suggest that the state habeas court applied the state
procedural rule arbitrarily or in an unprecedented way. See Mason, 605 F.3d at
1119-20.
Smith does argue that this Court should excuse his procedural default, but
not on the basis that he has shown the cause and actual prejudice this Court
requires. Instead, Smith maintains that his procedural default should be excused
because, through no fault of his own, his trial counsel failed to object to the
prosecutor’s conduct during closing argument, and therefore, under Georgia’s
procedural rules, his due process claim became forever unreviewable by the state
courts. See O.C.G.A. § 9-14-48(d) (precluding state habeas relief where the
petitioner has failed to make a timely objection at trial or on direct appeal and has
not showed cause and prejudice or a miscarriage of justice); Mullins v. State, 511
S.E.2d 165, 166-67 (Ga. 1999) (providing that in non-capital cases, a defendant’s
failure to object to an improper closing argument waives the right to raise that
argument on appeal). Smith points to the Georgia Supreme Court’s determination
that his wife’s closing argument claim raised on direct appeal was waived because
18 Case: 18-13801 Date Filed: 02/10/2020 Page: 19 of 21
her trial counsel did not object to it at trial. See Smith, 703 S.E.2d at 633 (citing
Mullins and concluding that Sonya Smith’s argument about the prosecutor’s
closing argument was waived).
In this regard, Smith relies on Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309
(2012), but the exception recognized in Martinez does not apply here. In Martinez,
the Supreme Court held that ineffective assistance by a prisoner’s state
postconviction counsel is cause to overcome the procedural default of an
ineffective trial counsel claim, but only when the state effectively requires a
defendant to bring the ineffective trial counsel claim in a state postconviction
proceeding, rather than on direct appeal. 566 U.S. at 9-13, 132 S. Ct. at 1316-17
(stressing that “[a] prisoner’s inability to present a claim of trial error is of
particular concern when the claim is one of ineffective assistance of counsel”).
The Supreme Court later clarified that its holding in Martinez applied where the
state law expressly prohibits a defendant from bringing an ineffective assistance of
trial counsel claim on direct appeal and where the state’s “procedural framework,
by reason of its design and operation, makes it highly unlikely in a typical case that
a defendant will have a meaningful opportunity to raise” that ineffective assistance
of trial counsel claim on appeal. Trevino v. Thaler, 569 U.S. 413, 429, 133 S. Ct.
1911, 1921 (2013).
19 Case: 18-13801 Date Filed: 02/10/2020 Page: 20 of 21
The problem for Smith is that both Martinez and Trevino recognize an
exception only for procedurally barred ineffective assistance of trial counsel
claims, not for all procedurally barred claims. Smith has not offered any legal
basis for extending Martinez’s procedural default exception to Smith’s due process
claim.
Even if Smith could establish cause for his procedural default, he has not
shown actual prejudice for the same reasons already discussed in connection with
his ineffective trial counsel claim. Given the overwhelming evidence of Smith’s
guilt, we cannot say that, but for the prosecutor’s conduct during closing argument,
the outcome of Smith’s trial would have been different. See United States v.
Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991) (stating that a prosecutor’s improper
argument cannot rise to the level of a due process violation unless there is a
reasonable probability that, but for the prosecutor’s offending remarks, the
outcome of the trial would have been different); see also Darden v. Wainwright,
477 U.S. 168, 181, 106 S. Ct. 2464, 2471 (1986) (“The relevant question is
whether the prosecutors’ comments so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” (quotation marks omitted)).
Additionally, Smith does not argue that he is actually innocent and that his
procedural default of his due process claim consequently would result in a
miscarriage of justice.
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III. CONCLUSION
In sum, we do not address the merits of Smith’s procedurally defaulted due
process claim because we agree with the district court that Smith failed to show
cause or actual prejudice to overcome the default. As for Smith’s ineffective
assistance of trial counsel claim, Smith has not shown that the Georgia Supreme
Court’s decision on the merits was contrary to, or an unreasonable application of,
clearly established federal law or was based on an unreasonable determination of
the facts in light of the evidence presented in the state court. See 28 U.S.C.
§ 2254(d). Accordingly, we affirm the district court’s denial of Smith’s § 2254
petition.
AFFIRMED.