Case: 19-12877 Date Filed: 04/27/2020 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12877 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cv-03808-ELR
SONYA Y. SMITH,
Petitioner-Appellant,
versus
PULASKI SP WARDEN,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(April 27, 2020)
Before WILSON, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM: Case: 19-12877 Date Filed: 04/27/2020 Page: 2 of 16
Sonya 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 was tried alongside her husband, Joseph, who was
represented by separate counsel. Smith appeals the district court’s denial of her
28 U.S.C. § 2254 petition for writ of habeas corpus, which raised two claims:
(1) her trial counsel’s failure to object to the state prosecutor’s conduct during
closing arguments violated her Sixth Amendment right to effective assistance of
counsel; and (2) the state prosecutor’s conduct violated her Fourteenth Amendment
due process right to a fair trial.
After review,1 and for the reasons explained below, we affirm the district
court’s denial of Smith’s § 2254 petition.
I. BACKGROUND
Although we assume the parties are already familiar with the facts of this
case, we briefly recount some salient points relevant to our analysis.
1 When reviewing the district court’s denial of a § 2254 petition, we review questions of law and mixed questions of law and fact, including ineffective-assistance-of-counsel claims, de novo, and review findings of fact for clear error. Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1097–98 (11th Cir. 2009).
2 Case: 19-12877 Date Filed: 04/27/2020 Page: 3 of 16
A. Indictment and Trial in State Court
In 2006, a state court grand jury indicted Smith and her husband, Joseph, 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 Joseph pled guilty to all counts.
Over the course of an eight-day trial, the jury heard testimony from multiple
witnesses, including three Cobb County, Georgia firemen who responded to the
Smiths’ home on the date of Josef’s death; five Cobb County police officers;
Josef’s former babysitter; Josef’s brother, Mikel; and several medical experts.
Collectively, that testimony showed that Smith and her husband “routinely
disciplined their son . . . by beating him with glue sticks, belts, and heated coat
hangers; locking him in confined spaces for extended periods of time; and tying his
hands with rope.” Smith v. State, 703 S.E.2d 629, 633 (Ga. 2010). It further
showed that, on the day of Josef’s death, Smith beat Josef; forced him into a
wooden box, beating him about the head as she did so; and tied the box shut with a
cord. Id. Testimony from the medical experts established Josef’s death resulted
from some combination of the physical abuse he suffered and asphyxiation. Id.
3 Case: 19-12877 Date Filed: 04/27/2020 Page: 4 of 16
After both the state and defense had rested, the case proceeded to closing
arguments. As relevant here, at the end of her rebuttal, the state prosecutor lit
candles on a birthday cake and 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 Smith’s counsel nor her husband’s counsel objected, and the district court
did not intervene on its own or issue a curative instruction.
Following deliberations, the jury found Smith and her husband guilty of one
of the counts of felony murder (Count 2), four counts of cruelty to children (Counts
5, 8, 10, and 12), all three counts of aggravated assault (Counts 6, 9, and 11), and
one count of false imprisonment (Count 13). 2 The jury also found Smith and her
husband guilty of the lesser included offense of involuntary manslaughter as to the
charge of malice murder in Count 1, and the lesser included offense of reckless
conduct as to the charge of cruelty to children in Count 14. Smith and Joseph were
acquitted of two counts of felony murder (Counts 3 and 4), and one count of false
2 The felony murder count for which Smith was convicted (Count 2) alleged that Smith caused Josef’s death “while in the commission of a felony, to wit: Cruelty to Children in the First Degree.” 4 Case: 19-12877 Date Filed: 04/27/2020 Page: 5 of 16
imprisonment (Count 7). The state trial court imposed a sentence of life plus 30
years for both Smith and her husband.
B. Motion for New Trial
After retaining new counsel, Smith filed an amended motion for a new trial,
raising several claims, including three related to the prosecutor’s actions during
closing arguments: (1) trial counsel rendered ineffective assistance when he failed
to object to the prosecutor’s conduct, (2) the prosecutor inflamed the jury and
prejudiced Smith; and (3) the trial court erred in failing to stop the prosecutor.
During a subsequent hearing, Smith’s trial counsel offered the following
explanation for his failure to object: “[S]ometimes you can offend someone with
that so we didn’t want to go out of our way to offend anyone on the jury or act like
we were trying to disrupt her argument. Also, it was a bit of a surprise and so we
didn’t do anything about it.” He went on to agree that, in general, an attorney
“might not object for the purpose of not calling more attention to something.”
After the hearing, the state trial court denied Smith’s amended motion for a
new trial, concluding Smith’s counsel had not performed deficiently. As to
Smith’s other claims regarding the prosecutor’s conduct, the state trial court
concluded Smith had waived them by failing to object contemporaneously at trial.
5 Case: 19-12877 Date Filed: 04/27/2020 Page: 6 of 16
C. Direct Appeal
In her direct appeal to the Georgia Supreme Court (which has exclusive
jurisdiction over appeals from murder convictions), Smith raised three claims
related to the prosecutor’s conduct during closing: (1) the prosecutor prejudiced
Smith through her conduct; (2) the trial court erred in allowing the prosecutor to
prejudice her; and (3) trial counsel was ineffective for failing to object to the
prosecutor’s conduct. Notably, Smith did not couch either her claim of
prosecutorial misconduct or her claim of trial court error in terms of her Fourteenth
Amendment right to due process, though she did argue “[t]he prejudicial
atmosphere made it impossible for [her] to receive a fair trial.”
The Georgia Supreme Court consolidated Smith’s appeal with her husband’s
appeal and issued a single opinion affirming the convictions of both defendants.
See Smith, 703 S.E.2d at 632–33. To start, the Georgia Supreme Court concluded
Smith had waived her claims of prosecutorial misconduct and trial court error
arising out of the prosecutor’s closing by failing to object at trial. Id. at 633. As to
her ineffective-assistance claim, the Georgia Supreme Court concluded Smith’s
counsel had not performed inadequately, stating as follows:
Counsel made a strategic decision not to object to the “Happy Birthday” song during the State’s closing argument. Specifically, he preferred to remain silent during the argument rather than run the risk of offending anyone on the jury by giving the impression that he was simply trying to disrupt the prosecutor’s argument. . . . [W]hile this Court frowns upon the prosecutor’s antics and finds them to be highly inappropriate, 6 Case: 19-12877 Date Filed: 04/27/2020 Page: 7 of 16
counsel’s decision to remain silent was reasonable, considering the fact that the prosecutor’s argument was so “preposterous” and “over the top” that it may have worked to the benefit of the defense even absent an objection. Indeed, it cannot be said that the jury may not have been alienated by the prosecutor’s theatrical stunt during its closing argument, as the jury found [Smith] not guilty on several of the charges against her[.]
Id. at 636. Smith subsequently sought reconsideration, which the Georgia
Supreme Court denied without comment.
D. State Habeas Proceedings
Following her direct appeal, Smith filed a counseled application for writ of
habeas corpus in state court. That petition raised several claims, including that her
“due process rights and [her] Sixth Amendment right to effective legal counsel
were denied by the prosecutor’s intentional, outrageous appeal to the jury’s
emotions and sympathies” during closing. In resolving this claim, the state habeas
court deferred to the Georgia Supreme Court. According to the state habeas court,
the Georgia Supreme Court considered and decided the issue when it held that
Smith’s “failure to object to the prosecutor’s closing argument waived review of
the issue on appeal” and that “trial counsel was not ineffective in failing to object
during closing argument.”
The Georgia Supreme Court later denied Smith’s application for a certificate
of probable cause. Smith then initiated the instant § 2254 proceeding, raising
several claims, including the ineffective assistance and due process claims
7 Case: 19-12877 Date Filed: 04/27/2020 Page: 8 of 16
discussed above. After denying Smith’s petition, the district court granted a
certificate of appealability as to those two claims.3
II. DISCUSSION
A. Ineffective Assistance of Counsel
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides
that, after a state court has adjudicated a claim on the merits, a federal court may
grant habeas relief only if the state court’s decision was (1) contrary to, or involved
an unreasonable 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 to the state court.
28 U.S.C. § 2254(d). “To justify federal habeas relief, the state court’s decision
must be 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) (quotation marks omitted).
To succeed on an ineffective-assistance-of-counsel claim, a movant must
show that (1) her attorney’s conduct was deficient, and (2) the deficient conduct
3 Smith’s husband, Joseph, also filed a § 2254 petition, raising substantially similar ineffective assistance and due process claims related to the prosecutor’s conduct during her closing argument. Another panel of this Court recently affirmed the denial of Joseph’s § 2254 petition, holding that the Georgia Supreme Court’s conclusion—that Joseph’s (separate) counsel was not ineffective for failing to object to the prosecutor’s conduct—was not unreasonable, and that Joseph had procedurally defaulted his claim that he was deprived of his right to due process. Smith v. Warden, No. 18-13801, 2020 WL 615034 (11th Cir. Feb. 10, 2020). 8 Case: 19-12877 Date Filed: 04/27/2020 Page: 9 of 16
prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
“review counsel’s actions in a highly deferential manner” and apply “a strong
presumption . . . of reasonable professional assistance.” Johnson v. Sec’y, DOC,
643 F.3d 907, 928 (11th Cir. 2011) (quotation marks omitted). To overcome this
presumption, a petitioner must show that “no competent counsel would have taken
the action that [her] counsel did take.” Id. (quotation marks omitted).
Moreover, “[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Downs v. Sec’y, Fla. Dep’t
of Corr., 738 F.3d 240, 258 (11th Cir. 2013) (quotation marks omitted) (alterations
in original). “Where the highly deferential standards mandated by Strickland and
AEDPA both apply, they combine to produce a doubly deferential form of review
that asks only whether there is any reasonable argument that counsel satisfied
Strickland[’s] deferential standard.” Id. (quotation marks omitted).
Applying these standards here, we conclude the Georgia Supreme Court’s
conclusion—that Smith’s counsel was not ineffective for failing to object to the
prosecutor’s conduct during closing—was not unreasonable. In its opinion
affirming Smith’s convictions and concluding Smith’s counsel had not performed
inadequately, the Georgia Supreme Court noted that Smith’s counsel “preferred to
remain silent during the argument rather than run the risk of offending anyone on
the jury by giving the impression that he was simply trying to disrupt the
9 Case: 19-12877 Date Filed: 04/27/2020 Page: 10 of 16
prosecutor’s argument.” The Georgia Supreme Court found this decision
reasonable, especially “considering the fact that the prosecutor’s argument was so
‘preposterous’ and ‘over the top’ that it may have worked to the benefit of the
defense even absent an objection.” Smith, 703 S.E.2d at 636.
We do not find this to be an unreasonable application of Strickland. The
record unquestionably shows that trial counsel’s decision not to object to the
prosecutor’s actions during closing arguments was a strategic one. As the Georgia
Supreme Court noted, Smith’s counsel, by his own account, chose not to object
because he worried doing so might alienate or “offend[]” the jury if it looked as
though he were “trying to disrupt the prosecutor’s argument.” Id. at 636.
Smith questions the wisdom of this strategic decision, but her arguments fail
to overcome the considerable deference we owe, both to trial counsel’s strategic
decisions and to the Georgia Supreme Court’s resolution of the claim. See
Strickland, 466 U.S. at 689 (“[T]he defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” (quotation marks omitted)); Downs, 738 F.3d at 258.
Smith argues we ought not defer to the Georgia Supreme Court’s
conclusions concerning her counsel’s performance because those conclusions were
based on an unreasonable determination of the facts in light of the record. She
points to the Georgia Supreme Court’s statement that her counsel’s decision not to
10 Case: 19-12877 Date Filed: 04/27/2020 Page: 11 of 16
object was reasonable “considering the fact that the prosecutor’s argument was so
‘preposterous’ and ‘over the top’ that it may have worked to the benefit of the
defense,” arguing her counsel never claimed to base his decision on an expectation
that the jury would be turned off by the prosecutor’s outrageous conduct.4 See
Smith, 703 S.E.2d at 636.
Considering the Georgia Supreme Court made the above statement only
after accurately identifying Smith’s counsel’s purported reason for declining to
object (the risk of offending the jury by interrupting the prosecutor) it is hardly
clear that the Georgia Supreme Court based its Strickland analysis on any faulty
findings of fact regarding counsel’s strategic decision not to object. See id.
Indeed, although the Georgia Supreme Court referenced the reasonableness of
counsel’s decision, it immediately went on to note that the jury in fact acquitted
Smith of some of the more serious charges, see id., a line of reasoning that invokes
Strickland’s prejudice prong, as it suggests the trial’s outcome likely was not
adversely affected by the prosecutor’s conduct during closing, see Strickland, 466
U.S. at 694 (noting that, to establish prejudice under Strickland, a petitioner must
4 Counsel for Smith’s husband did, however, claim to base his decision not to object on such a calculus, testifying he did not object because he did not want to call any more attention to the stunt as it was “so absurd,” and he thought “it would turn the jurors off.” Smith, 703 S.E.2d at 637. The Georgia Supreme Court issued a single opinion addressing the arguments of both defendants, though it addressed their claims separately. 11 Case: 19-12877 Date Filed: 04/27/2020 Page: 12 of 16
show that, but for her counsel’s deficient performance, “there is a reasonable
probability that . . . the result of the proceeding would have been different”).
In any case, even assuming we found the Georgia Supreme Court’s
Strickland analysis was based on an “unreasonable determination of the facts in
light of the evidence presented,” 28 U.S.C. § 2254(d)(2), this would not
necessarily entitle Smith to habeas relief. Instead, it would simply mean we would
review her ineffective-assistance claim de novo—that is, without according
deference under AEDPA to the Georgia Supreme Court’s resolution of the claim.
See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1352–53 (11th Cir. 2011).
But even were we to review Smith’s ineffective-assistance claim de novo,
we would nonetheless affirm on the ground that Smith failed to demonstrate
prejudice resulting from her counsel’s failure to object. See Strickland, 466 U.S. at
694. First, although the trial court did not issue a specific curative instruction, it
did instruct the jury that closing arguments do not constitute evidence, and we
presume a jury will follow the instructions given to it. See United States v.
Annamalai, 939 F.3d 1216, 1224 (11th Cir. 2019). Second, as the Georgia
Supreme Court noted, the record suggests the jury was not taken in by the
prosecutor’s stunt, as Smith was acquitted of some of the more serious charges,
including malice murder. See Smith, 703 S.E.2d at 636.
12 Case: 19-12877 Date Filed: 04/27/2020 Page: 13 of 16
Third, and most importantly, the record shows the state presented
overwhelming evidence from which the jury could have found beyond a reasonable
doubt that Smith committed the crimes for which she was convicted. As discussed
above, the jury was presented with ample testimony showing that Smith (and her
husband) routinely beat Josef and that, on the day of Josef’s death, Smith beat
Josef, forced him into a wooden box, and tied the box shut with a cord. That
testimony, combined with the testimony from medical experts concerning Josef’s
cause of death, constituted powerful evidence that Smith was guilty of all the
counts of conviction—involuntary manslaughter, felony murder, cruelty to
children, aggravated assault, false imprisonment, and reckless conduct. In light of
such powerful evidence, trial counsel’s failure to object to the prosecutor’s
inappropriate conduct during closing arguments does not undermine our
confidence in Smith’s convictions, and she cannot satisfy Strickland’s second
prong. See Strickland, 466 U.S. at 694.
B. Due Process Violation
Before addressing the substance of Smith’s due process claim, we must first
determine the applicable standard.5 Smith insists she is entitled to relief unless we
5 There is also an issue here concerning whether Smith properly exhausted her due process claim in state court. As discussed above, on direct appeal, Smith raised two claims of error (in addition to her ineffective-assistance claim) related to the prosecutor’s closing argument: (1) prosecutorial misconduct; and (2) trial court error, which the Georgia Supreme Court concluded were waived. Smith, 703 S.E.2d at 633. As the state concedes, Smith raised these claims on direct appeal solely in terms of state law and did not argue the prosecutor’s 13 Case: 19-12877 Date Filed: 04/27/2020 Page: 14 of 16
determine any error associated with the prosecutor’s conduct was “harmless
beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24 (1967),
while the state argues Smith is not entitled to relief unless she shows the
constitutional error “had a substantial and injurious effect or influence in
determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
In Chapman, a direct appeal case, the Supreme Court held that, “before a
federal constitutional error can be held harmless, the court must be able to declare
a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24.
However, the Court held in Brecht that the Chapman harmless-error standard is not
applicable to habeas cases. 507 U.S. at 623. Instead, the Court held that the
standard for determining whether habeas relief must be granted is whether the
constitutional error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. (quotation marks omitted); see also Fry v.
Pliler, 551 U.S. 112, 121–22 (2007) (“We hold that in § 2254 proceedings a court
must assess the prejudicial impact of constitutional error in a state-court criminal
trial under the ‘substantial and injurious effect’ standard set forth in Brecht,
conduct during closing deprived her of due process under the Fourteenth Amendment. Notwithstanding this, when Smith raised a federal due process claim in her state habeas proceeding, the state habeas court mistakenly found Smith’s due process claim was decided adversely on direct appeal and could not be relitigated. Thus, while it may be the case that Smith’s due process claim is, practically speaking, unexhausted, we can neither say she wholly failed to raise it in state court, nor point to any state procedural ruling to which we can fairly defer. See Bailey v. Nagle, 172 F.3d 1299, 1302–03 (11th Cir. 1999). Accordingly, we will consider the merits of Smith’s due process claim de novo. 14 Case: 19-12877 Date Filed: 04/27/2020 Page: 15 of 16
whether or not the state appellate court recognized the error and reviewed it for
harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in
Chapman.” (citations omitted)).
Because this is a habeas case, the law is clear that Brecht applies, and Smith
is only entitled to relief if she can satisfy Brecht’s “substantial and injurious effect”
standard. 6 “The standard for granting habeas relief under Brecht is extremely
demanding,” and “there must be more than a reasonable possibility that the error
contributed to the conviction or sentence.” See Al-Amin v. Warden, Ga. Dep’t of
Corr., 932 F.3d 1291, 1299, 1303 (11th Cir. 2019).
In light of our above conclusion that trial counsel’s failure to object to the
prosecutor’s conduct does undermine our confidence in Smith’s convictions, we
readily conclude that Smith cannot show “more than a reasonable possibility that
[the prosecutor’s conduct] contributed to [her] conviction.” See Al-Amin, 932 F.3d
at 1299. The incident therefore did not have a substantial and injurious effect or
influence on the jury’s verdicts, and Smith is not entitled to relief on her federal
due process claim.
6 Smith argues the Brecht should not apply here because, unlike in Brecht itself and Fry, her due process claim was never addressed by the state court under any standard. The only authority Smith cites for this proposition is the Fry Court’s statement that it did not need to resolve whether “Brecht would apply even if a State eliminated appellate review altogether.” Fry, 551 U.S. at 118–19. But this is not a case where Georgia has “eliminated appellate review.” True, there was no appellate review of Smith’s claim, but that is because, as noted above, Smith failed to raise a federal due process claim on direct appeal.
15 Case: 19-12877 Date Filed: 04/27/2020 Page: 16 of 16
III. CONCLUSION
For the reasons discussed above, we affirm the district court’s denial of
Smith’s § 2254 petition.
AFFIRMED.