*

Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4303.

Harold SNOWDEN, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

Feb. 18, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 93-100-CIVNESBITT), Lenore C. Nesbitt, Judge.

Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*

, Senior Circuit Judges.

EDMONDSON, Circuit Judge:

Harold Snowden ("Snowden"), a state prisoner, appeals the district court's denial of his

petition for habeas corpus relief. The petition presented some unexhausted claims and some

exhausted claims. Because all issues raised by Snowden in his habeas petition were either totally

exhausted in state court or were already procedurally barred from further consideration in state

court, we address the claims in the petition that were exhausted. We reverse the district court's

denial of Snowden's petition.

Background

In 1996, Snowden was convicted of five counts of child abuse for acts which allegedly

occurred at his home, where his wife cared for several children. Snowden was sentenced to two

consecutive life terms.

Snowden appealed his conviction to the Third District Court of Appeal of Florida. That
court affirmed Snowden's conviction. See Snowden v. State, 537 So.2d 1383

(Fla.Dist.Ct.App.1989). The Florida Supreme Court denied discretionary review. See Snowden v.

State, 547 So.2d 1210 (Fla.1989). Snowden then filed a motion for post-conviction relief under

Florida Rule of Criminal Procedure 3.850. That motion was denied by the state trial court without

an evidentiary hearing. The Third District Court of Appeal of Florida affirmed the trial court's

denial of Snowden's petition for post-conviction relief. See Snowden v. State, 589 So.2d 911

(Fla.Dist.Ct.App.1991).

Snowden next sought post-conviction relief in federal court and filed a petition for federal

habeas relief under section 2254 in the United States District Court for the Southern District of

Florida. In June 1994, a magistrate judge issued a report and recommendation stating that relief

should be denied. This report and recommendation was adopted by the district court, and relief was

denied. Snowden appeals that decision.

Discussion

In this appeal and in his petition for federal habeas relief, Snowden focuses on eight claims

of error, including: (1) The state trial court prohibited adequate voir dire, violating his rights to due

process and an impartial jury; (2) An expert witness for the State destroyed evidence, violating his

rights of due process and confrontation of the witnesses against him; (3) The trial court improperly

allowed four adults to testify about alleged-child-victims' hearsay statements, violating his rights of

due process and equal protection; (4) The trial court admitted expert witness testimony about the

truthfulness of the child witnesses, violating due process; (5) The trial court permitted the State's

expert witness to testify that Snowden's counsel was abusive to one of the children during a

deposition, violating due process; (6) The trial court allowed evidence of abuse against other

children, that is, similar crimes evidence, violating due process; (7) The prosecutor made improper
 1

In Snowden's petition to the district court for relief he included these claims, along with

some others. All the additional claims—trial court bias, exclusion of defense evidence, and

denial of psychological reports—were either procedurally barred from federal consideration or

lack merit upon which to grant relief. Thus, we do not discuss these claims. 

comments during closing argument, violating due process; and (8) The errors, taken cumulatively,

violated Snowden's due process rights.1

To be appropriate for this court's review, Snowden must have raised these claims in state

court to allow the state courts the opportunity to rule on the federal issues: the doctrine of

exhaustion of state remedies.

I. Exhaustion of State Remedies and Procedural Defaults

 In general, a federal court may not grant habeas corpus relief to a state prisoner who has not

exhausted his available state remedies. 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not

be granted unless it appears that ... the applicant has exhausted the remedies available in the courts

of the State...."). "When the process of direct review ... comes to an end, a presumption of finality

and legality attaches to the conviction.... The role of federal habeas proceedings, while important

in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not

forums in which to relitigate state trials." Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir.1989)

(quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 [1983]

).

 Exhaustion of state remedies requires that the state prisoner "fairly presen[t] federal claims

to the state courts in order to give the State the opportunity to pass upon and correct alleged

violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888,

130 L.Ed.2d 865 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30
 2

Snowden properly presented to the state court the federal law issues of the jury voir dire, of

the destruction of evidence, of the expert testimony about the truthfulness of the child witnesses,

and of his ineffective assistance of trial counsel. Although Snowden did not specifically state on

direct appeal that these issues were to be reviewed under the Federal Constitution, he did provide

enough information about the claims (including cites to Supreme Court cases) to notify the state

courts that the challenges were being made on both state and federal grounds. For example, he

presented these points to the state courts:

L.Ed.2d 438 [1971] ) (internal quotation marks omitted). The Supreme Court has written these

words:

[T]hat the federal claim must be fairly presented to the state courts .... it is not sufficient

merely that the federal habeas applicant has been through the state courts.... Only if the state

courts have had the first opportunity to hear the claim sought to be vindicated in a federal

habeas proceeding does it make sense to speak of the exhaustion of state remedies.

Picard, 404 U.S. at 275, 92 S.Ct. at 512. See also Duncan, 513 U.S. at 365, 115 S.Ct. at 888

("Respondent did not apprise the state court of his claim that the evidentiary ruling of which he

complained was not only a violation of state law, but denied him the due process of law guaranteed

by the Fourteenth Amendment.").

 Thus, to exhaust state remedies fully the petitioner must make the state court aware that the

claims asserted present federal constitutional issues. "It is not enough that all the facts necessary

to support the federal claim were before the state courts or that a somewhat similar state-law claim

was made." Anderson v. Harless, 459 U.S. 4, 5-6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citations

omitted).

 After examination of the record on appeal, including the trial transcript, Snowden's direct

appeal brief, Snowden's petitions for state post-conviction relief, and the district court's order, we

believe Snowden's petition for federal habeas relief is a mixed petition: some of the claims were

exhausted in the Florida state courts, while other claims were not presented to the state courts for

review.2

 A federal district court ordinarily must dismiss a "mixed" habeas petition (one which
1. "It is apod[i]ctic that a meaningful voir dire is critical to effectuating an

accused's constitutionally guaranteed right to a fair and impartial jury." Snowden's

Direct Appeal Brief at 66 (citing Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct.

1629, 68 L.Ed.2d 22 [1981] ).

2. "The Due Process Clause guarantees an accused access to relevant and material

evidence necessary to prepare his defense." Snowden's Direct Appeal Brief at 43 (citing

Barnard v. Henderson, 514 F.2d 744 [5th Cir.1975] ).

3. "By permitting improper expert testimony to bolster [the child's] credibility—a

clear invasion of the jury's sole province—Mr. Snowden was denied a fair trial." 

Snowden's Direct Appeal Brief at 56.

4. Snowden specifically raised the issue of ineffective assistance of counsel in his

post-conviction petition to the Florida state court. See State v. Barber, 301 So.2d 7

(Fla.1974) (ineffective assistance claim properly raised for first time in post-conviction

relief petition).

Also, by raising these issues on direct appeal Snowden has exhausted his state

remedies, although the issues were only raised during state collateral-relief proceedings

in the context of ineffective-assistance-of-counsel contentions. See Castille v. Peoples,

489 U.S. 346, 349-50, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989) ("[O]nce the state

courts have ruled upon a claim, it is not necessary for a petitioner "to ask the state court

for collateral relief, based upon the same evidence and issues already decided by direct

review.' ") (quoting Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469

[1953] ). 

 3

Claims Snowden failed to raise in state court have been procedurally defaulted: they are

now procedurally barred from consideration in Florida courts. Because of this default, we

cannot review the merit of those claims without a showing by Snowden of both cause for the

default and prejudice from the alleged constitutional violation. See Wainwright v. Sykes, 433

U.S. 72, 89-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). Snowden seems to make no

argument of cause and prejudice for the unexhausted, procedurally defaulted claims. So, we will

contains both exhausted and unexhausted claims) without prejudice—allowing either resubmission

of only exhausted claims or total exhaustion. Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198,

1204, 71 L.Ed.2d 379 (1982).

 But, when it is obvious that the unexhausted claims would be procedurally barred in state

court due to a state-law procedural default, we can forego the needless "judicial ping-pong" and just

treat those claims now barred by state law as no basis for federal habeas relief.3 See Coleman v.
not consider those claims on the merits. 

 4All alleged mistakes in the state trial court which were presented in federal court were raised

in state courts in some manner. But, only the claims that were raised as federal constitutional

issues before the state courts have been exhausted in the state courts. The remaining claims are

unexhausted. These claims, however, cannot be further reviewed in state court because

Snowden's failure to raise the constitutional issues surrounding the errors in his first

post-conviction petition in the Florida courts bars him from raising these new issues in a

successive petition. See Mills v. Florida, 684 So.2d 801, 804 n. 3 (Fla.1996); Spaziano v.

Florida, 545 So.2d 843, 844 (Fla.1989) ("Unless petitioner shows justification for failure to raise

the present issue[s] in the first petition, the second successive petition pursuant to Florida Rule

of Criminal Procedure 3.850 may be dismissed as an abuse of procedure."); Dyer v. Florida, 655

So.2d 123, 123 (Fla.Dist.Ct.App.1995) ("Successive petitions for habeas corpus should be

denied as an abuse of procedure.") (citations omitted). Snowden has alleged no justifications for

his failure to raise all of his claims as federal constitutional issues. 

Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991); Harris v.

Reed, 489 U.S. 255, 269, 109 S.Ct. 1038, 1046-47, 103 L.Ed.2d 308 (1989) (O'Connor, J.,

concurring). And, in this case, where all the unexhausted claims are procedurally barred from being

considered in Florida courts, it would serve no purpose to dismiss the petition for further exhaustion

because review of those claims is unavailable in state courts.4

 The district court's order, by accepting the magistrate judge's report and recommendations,

concluded that most of Snowden's claims were procedurally barred under Florida state law and, thus,

could not be the source of federal relief. Usually "[a] procedural default bars the consideration of

the merits of an issue in federal court only when the state court itself applies the procedural default

rule." Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983) (citing Ulster County Court v.

Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 [1979] ); see also Rogers v.

McMullen, 673 F.2d 1185, 1188 (11th Cir.1982) ("where "the state courts have not relied

exclusively upon [a] procedural default' " federal habeas review is not prevented) (quoting

Thompson v. Estelle, 642 F.2d 996, 998 [5th Cir.1981] ). In this case, the Florida appellate court

did not apply procedural bars to those claims of Snowden which he presented to it. Snowden v.
Florida, 537 So.2d 1383, 1383 (Fla.Dist.Ct.App.1989) ("While we find no merit in any of the

numerous points on appeal raised by Snowden, we find worthy of discussion Snowden's contention

that the introduction by the State of evidence to show ... similar acts ... infringed upon his right to

a fair trial...."). But we believe that the district court correctly concluded that many of the claims

were procedurally barred or would effectively be barred by Snowden's failure to raise them at his

first Rule 3.850 proceeding.

 Federal courts may apply state rules about procedural bars to conclude that further attempts

at exhaustion would be futile. This step should not be taken if there is a reasonable possibility that

an exception to the procedural bar may still be available to the petitioner. Richardson v. Turner, 716

F.2d 1059 (4th Cir.1983). As mentioned, we believe the district court properly concluded that no

reasonable possibility exists for Snowden, in state court, to raise (as federal constitutional issues)

those issues which he failed to raise throughout his direct appeal and in his first state post-conviction

petition.

But, about the issues of jury voir dire, destruction of evidence, improper expert testimony

about credibility, and ineffective assistance of counsel, we see properly exhausted claims. Because

all issues presented are either properly before the federal courts or, in the light of state procedures,

now barred from our consideration, we can and will address Snowden's petition partly on the merits.

II. The Merits of the Petition

We need go no further than to address the claimed error of permitting an expert witness to

testify about the credibility of other witnesses.

 When reviewing a state court evidentiary ruling, generally federal courts "are not

empowered to correct erroneous evidence rulings of state trial courts." Boykins v. Wainwright, 737

F.2d 1539, 1543 (11th Cir.1984) (citations omitted). "Nevertheless, when a state trial court's
evidence rulings deny a habeas petitioner fundamental constitutional protections, this [c]ourt's duty

requires it to enforce the constitution's guarantees by granting the petition for a writ of habeas

corpus." Id. at 1544. Before relief can be granted the error "must rise to the level of a denial of

fundamental fairness." Hall v. Wainwright, 733 F.2d 766, 770 (11th Cir.1984) (quotations and

citations omitted). Such fundamental unfairness violates the Due Process Clause of the Federal

Constitution. Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976).

 A denial of fundamental fairness occurs whenever the improper evidence "is material in the

sense of a crucial, critical, highly significant factor." Osborne v. Wainwright, 720 F.2d 1237, 1238

(11th Cir.1983). The evidence at issue in this petition is testimony by an expert witness (Dr.

Miranda) that 99.5% of children tell the truth and that the expert, in his own experience with

children, had not personally encountered an instance where a child had invented a lie about abuse.

These statements were elicited, during the presentation of the State's case-in-chief, by prosecutor's

questions which were linked to the expert's interviews with a specific child who testified at the

trial—the only child who testified in this case who also was identified by the State as a victim of the

crime for which Snowden was on trial. See Appendix.

That such evidence is improper, in both state and federal trials, can hardly be disputed. See,

e.g., United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986) (expert testimony about credibility

of alleged-child-sexual-assault victim improperly invades province of jury, which "may well have

relied on [the expert's] opinion and surrender[ed] their own common sense in weighing testimony")

(internal quotation marks and citation omitted); Tingle v. Florida, 536 So.2d 202, 205 (Fla.1988)

("error for the state's witnesses to directly testify as to the truthfulness of the victim; .... the ultimate

conclusion as to the victim's credibility always will rest with the jury"). But (and this point bears

repeating) not every evidentiary error amounts to a denial of fundamental fairness.
The case against Snowden was based almost entirely upon the stories told by three,

young-children witnesses. The oldest, allegedly abused child (and the oldest child witness) was 6

years old at the time of trial; the abuse had supposedly occurred, at least, two years before the trial.

The only physical evidence that a child might have been abused by anyone was that one of the

children had been treated for an ailment which can be transmitted sexually, but is also transmitted

by other means.

And this case is not one in which the prosecution's expert's view of victim credibility was

touched on only briefly at the trial. In the prosecutor's argument to the jury, he stressed the

significance of the expert's opinion about the credibility of child victims of supposed sexual abuse.

Over and over again, the prosecutor hit the point hard, saying this, among other things, about Dr.

Miranda's trial testimony:

Dr. Miranda is a witness who is a real expert in this case.... He is a real expert....

....

He told you that out of those 1,000 kids [the 1,000 Dr. Miranda had said he had interviewed

about sexual abuse], 995 of them told the truth.... That's 99.5 percent of the children.... He

said in 99.5 percent of those cases it has been his experience that the children have been

telling the truth....

....

... That's the opinion of Dr. Simon Miranda. 99.5 percent of the kids tell the truth....

....

[Dr. Miranda concluded] that ... there was no evidence that the girl made up the entire

story....

....

... And, remember, if you don't remember anything else about Dr. Miranda's testimony, just

remember two things: That he was qualified as an expert in child sexual abuse 250 times,

and that it is his experience that 99.5 percent of the children who report an incident of sexual

abuse are telling the truth.
 5

The expert's statements were elicited on redirect examination after defense

cross-examination. We believe a fair reading of the record shows the defense cross-examination

focused on the general methodology for treating abused children, general behavior of abused

children, and the information possessed by the expert about this child's previous interviews with

other psychologists. The defense cross-examination did not directly spotlight the expert's

opinion about a specific child's veracity as the redirect did. That the improper

opinion—vouching for credibility—was elicited on redirect examination does not make it less a

constitutional error. 

 6

Although the Florida courts denied relief to Snowden, the state courts did not specifically

write about expert testimony on credibility. 

The jury's opinion on the truthfulness of the children's stories went to the heart of the case.

This circumstance makes Snowden—against whom there was, otherwise, very little

evidence—deserving of relief.5

 See Gregory v. North Carolina, 900 F.2d 705, 705-06 (4th Cir.1990)

(some physical evidence of abuse, but most damning evidence was erroneously admitted so habeas

granted). Cf. Davis v. Zant, 36 F.3d 1538, 1546 (11th Cir.1994) (habeas consideration often requires

a look to the evidence of guilt of the accused); McCoy v. Newsome, 953 F.2d 1252, 1265 (11th

Cir.1992) (erroneously admitted evidence "is not crucial, critical and highly significant when other

evidence of guilt is overwhelming") (internal quotes and citation omitted); Adesiji v. Minnesota,

854 F.2d 299, 300-01 (8th Cir.1988) (where expert opinion of general credibility of child witnesses,

which expert had not personally interviewed, mentioned only once and briefly, and where substantial

other evidence of child abuse, error harmless for habeas purposes). Permitting an expert to vouch

forcefully for the children's credibility in this case was a "crucial, critical, highly significant factor."

In addition, there was no adequate means to counter such a contention: it truly was this expert's

opinion that child witnesses in sexual abuse cases tell the truth.

The district court agreed that the admission of this testimony probably violated state law, but

ruled that the evidence did not rise to the level of fundamental unfairness.6

 We cannot agree.

 Witness credibility is the sole province of the jury. Very rarely will a state evidentiary error
rise to a federal constitutional error; but given the circumstances of the trial underlying this case,

we conclude that allowing expert testimony to boost the credibility of the main witness against

Snowden—considering the lack of other evidence of guilt—violated his right to due process by

making his criminal trial fundamentally unfair. So, we reverse the district court's decision and

remand with instructions to grant Snowden's petition for relief, releasing Snowden unless the state

affords him a speedy new trial.

REVERSED and REMANDED. 

APPENDIX

Excerpts of Redirect Examination of Dr. Miranda (by State):

Q: Doctor, when you interviewed [the child witness] and she told you about the incident of

sexual abuse, did you find any evidence in your interview that [she] was unable when she described

in detail those incidences in detail that she was unable to tell fact from fantasy?

A: I did not.

Q: Did you find any evidence in your interview to indicate to you that when [the child] told

you about how she was sexually abused by Grant her babysitter, did you find any evidence to

indicate that [she] did not realize the significance of the statements she was making?

A: I did not.

....

Q: Okay. Doctor, in your professional experience bringing into mind that you have

interviewed 1,000 kids where there has been an allegation of a sexual abuse, has it been your

experience that it is common or uncommon for a child to come into an interview situation with you

and make up a fantasy story about being sexually abused and give you specific details and

demonstrate with specificity with anatomically correct dolls, is it common for that type of thing to
have been made up?

....

A: It is not a common experience.

Q: I'll grant you that it's possible. Let's talk about how possible. Is it a likely experience,

is it unlikely, is it probable, is it unprobable? Can you talk about how possible it is since we know

that anything is possible?

....

A: I think that the easiest thing would be for me to answer on the basis of my experience.

Q: You may do so, sir.

A: And if we use fabrication in the strict sense of the word meaning to make up the story ...

I have not encountered it but I do not consider it impossible for it to happen.

However, I have had in the cases that I have evaluated a new—and I'm talking about less

than ten but maybe more in the realm of five instances that I can recall where the allegations—

Q: Five out of the thousand?

A: Yes....

R. at 7-1745-48.