Sonya Y. Smith v. Pulaski SP Warden ( 2020 )


Menu:
  •            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    [DO NOT PUBLISH]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.
    16