[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-16612

Non-Argument Calendar

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D.C. Docket No. 5:12-cv-00191-WTH-PRL

DAVID CURTIS SMITH,

Petitioner - Appellant,

Versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

FLORIDA ATTORNEY GENERAL,

Respondents - Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 8, 2018)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

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David Curtis Smith, a Florida prisoner, appeals the district court’s dismissal 

of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Smith argues that the 

district court erred in rejecting his claim that the admission of a 911 recording at 

trial rendered his trial fundamentally unfair. He also argues that the district court 

erred in rejecting his claim that his counsel was ineffective for failing to object to 

an erroneous jury instruction that included an alternative theory of liability.

I.

We review a district court’s denial of a § 2254 petition de novo. Bester v. 

Warden, 836 F.3d 1331, 1336 (11th Cir. 2016), cert. denied, 137 S. Ct. 819 (2017). 

In an appeal brought by an unsuccessful habeas petitioner, the scope of our review 

is limited to the issues specified in the certificate of appealability (“COA”). 

Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). 

The Antiterrorism and Effective Death Penalty Act of 1996 (“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, 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). Thus, while review of the district court’s decision is de novo, 

the review of the state habeas court’s decision is with deference. Reed v. Sec’y, 

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Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010). The AEDPA imposes a 

highly deferential standard for evaluating state-court rulings, and demands that 

state-court decisions be given the benefit of the doubt. Renico v. Lett, 559 U.S. 

766, 773 (2010). This standard is difficult for a habeas petitioner to meet. White v. 

Woodall, 134 S. Ct. 1697, 1702 (2014).

“Clearly established federal law” consists of the governing legal principles, 

rather than the dicta, set forth in the decisions of the Supreme Court at the time the 

state court issues its decision. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). 

A decision is “contrary to” clearly established federal law if the state court either 

(1) applied a rule that contradicts the governing law set forth by the Supreme Court 

case law or (2) reached a different result from the Supreme Court when faced with 

materially indistinguishable facts. Id.

A state court decision involves an “unreasonable application” of the 

Supreme Court’s precedents if the state court correctly identifies the governing 

legal principle but applies it to the facts of the petitioner’s case in an objectively 

unreasonable manner. Brown v. Payton, 544 U.S. 133, 141 (2005). The 

“unreasonable application” inquiry requires that the state court decision be more 

than incorrect or erroneous – it must be “objectively unreasonable.” Lockyer v. 

Andrade, 538 U.S. 63, 75 (2003). Even if the federal court concludes that the state 

court applied federal law incorrectly, relief is appropriate only if that application is 

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also objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694 (2002). Petitioner 

must show that the state court’s ruling was so lacking justification that there was 

an error well understood and comprehended in existing law beyond any possibility 

for fairminded disagreement. White, 134 S. Ct. at 1702.

Florida law permits the admission of relevant evidence unless the law 

provides otherwise. Fla. Stat. Ann. § 90.402. Relevant evidence is inadmissible if 

its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, misleading the jury, or needless presentation of cumulative 

evidence. Id. § 90.403. The unfair prejudice that section 90.403 attempts to

eliminate relates to evidence that inflames the jury or appeals improperly to the 

jury's emotions. State v. McClain, 525 So. 2d 420, 422 (Fla. 1988). Only where 

the unfair prejudice substantially outweighs the probative value of the evidence 

should it be excluded. Amoros v. State, 531 So. 2d 1256, 1260 (Fla. 1988). The 

burden is on the party attempting to exclude the evidence to make that showing. 

State v. Gerry, 855 So. 2d 157, 159 (Fla. Dist. Ct. App. 2003).

Federal courts generally do not review a state court’s admission of evidence 

in habeas corpus proceedings. McCoy v. Newsome, 953 F.2d 1252, 1265 (11th Cir. 

1992). However, where a state court’s ruling is claimed to have deprived a 

defendant of his right to due process, a federal court should inquire whether the 

error was of such magnitude that it denied fundamental fairness to the trial. Baxter 

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v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995). A denial of fundamental fairness 

occurs whenever the improper evidence is material in the sense of a crucial, 

critical, highly significant factor. Id. Evidence is not crucial, critical, or highly 

significant when other evidence of guilt is overwhelming. McCoy, 953 F.2d at

1265. Moreover, the court must defer to a state court’s interpretation of its own 

rules of evidence and procedure. Machin v. Wainwright, 758 F.2d 1431, 1433 

(11th Cir. 1985).

If a federal court determines that there has been a constitutional error, habeas 

relief still may not be warranted if the error was “harmless.” Brecht v. 

Abrahamson, 507 U.S. 619, 630 (1993). An error is harmless on collateral review 

if it did not have a substantial or injurious effect or influence on the jury’s verdict. 

Id. at 637.

Because the 911 tape provided probative evidence tending to rebut Smith’s 

argument that the family was fabricating the claim that he sexually assaulted the 

child, it is not at all clear that it was error for the state court to admit it into 

evidence. Because the error, if there was one, is not clear, Smith cannot carry his 

burden of showing that the state court’s decision was objectively unreasonable. 

Fla. Stat. Ann. § 90.403; Amoros, 531 So. 2d at 1260; Gerry, 855 So. 2d at 159. 

Moreover, even if the admission of the 911 recording was error, Smith did not 

show that the error had a substantial effect on the jury’s verdict, or that it was of 

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such magnitude that it denied fundamental unfairness to his trial. Brecht, 507 U.S. 

at 637; Baxter, 45 F.3d at 1509. Given the weight of evidence against Smith1

, the 

inclusion of the 911 tape was not material in the sense of a “crucial, critical, highly 

significant factor.” Baxter, 45 F.3d at 1509.

II.

In Strickland v. Washington, the Supreme Court established a two-part test 

for determining whether a convicted person is entitled to relief on the ground that 

his counsel rendered ineffective assistance. 466 U.S. 668, 687 (1984). A 

petitioner must establish that counsel’s performance was deficient, and that the 

deficient performance prejudiced the defense. Id.

Under the prejudice prong, petitioner’s burden to demonstrate prejudice is 

high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice 

requires showing that counsel’s errors were so serious as to deprive the defendant 

of a fair trial. Strickland, 466 U.S. at 687. That is, the defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Id. at 694. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. Id. 

The petitioner must show more than that the errors had some conceivable effect on 

 

1 Indeed, the evidence was overwhelming. Smith was found holding the naked and bleeding 

victim; a sexual assault examination concluded that the victim had been penetrated, and the 

victims DNA was found on Smith’s shorts and underwear.

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the outcome of the proceeding. Id. at 693. The petitioner must affirmatively prove 

prejudice by demonstrating that the unprofessional errors were so egregious as to 

render the trial unfair and the verdict suspect. Johnson v. Alabama, 256 F.3d 1156, 

1177 (11th Cir. 2001). However, the petitioner need not show that counsel’s 

conduct more likely than not altered the outcome in the case. Brownlee v. Haley, 

306 F.3d 1043, 1059-60 (11th Cir. 2002). 

For an ineffective-assistance claim raised in a § 2254 petition, the inquiry 

turns upon whether the relevant state court decision was contrary to, or an 

unreasonable application of, Strickland. See Cullen v. Pinholster, 563 U.S. 170, 

189 (2011). Because judicial review of a Strickland claim already must be “highly 

deferential,” a federal habeas court’s review of a state court decision denying a 

Strickland claim is “doubly deferential.” Id. at 190. The question is whether the 

state court’s determination under Strickland was reasonable. Knowles v. 

Mirzayance, 556 U.S. 111, 123 (2009). 

Here, the district court properly determined that the state post-conviction 

court’s application of Strickland was reasonable, as Smith failed to meet his high 

burden to show that he was prejudiced by his counsel’s failure to object to the 

erroneous jury instruction. 

AFFIRMED.

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