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                                                         [DO NOT PUBLISH]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:
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       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).

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      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.




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       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.”
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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.




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      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,
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      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


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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).
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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


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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


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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.
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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.




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       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
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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.
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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.

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                               III. CONCLUSION

      For the reasons discussed above, we affirm the district court’s denial of

Smith’s § 2254 petition.

      AFFIRMED.




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