PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 94-4303 _____________________________________
D. C. Docket No. 93-100-CIV-NESBITT
HAROLD SNOWDEN,
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, Secretary, Florida Department of Corrections,
Respondent-Appellee.
______________________________________
Appeal from the United States District Court for the Southern District of Florida _______________________________________
(February 18, 1998)
Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*, Senior Circuit Judges.
_______________
* Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation. 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.
2 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
3 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
4 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
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
In Snowden’s petition to the district 1
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.
5 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.”
6 Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) (quoting
Barefoot v. Estelle, 103 S.Ct. 3383, 3391-92 [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, 115 S.Ct. 887, 887 (1995) (citing Picard v. Connor, 92
S.Ct. 509, 512 [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, 92 S.Ct. at 512. See also Duncan, 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
7 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, 103 S.Ct. 276, 277 (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
2 Snowden properly presented to the state court the federal 8 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: 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, 101 S.Ct. 1629 [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 9 must dismiss a “mixed” habeas petition (one which contains
both exhausted and unexhausted claims) without prejudice --
allowing either resubmission of only exhausted claims or total
exhaustion. Rose v. Lundy, 102 S.Ct. 1198, 1204 (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. Thompson, 111
Castille v. Peoples, 109 S.Ct. 1056, 1059 (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, 73 S.Ct. 397, 402 [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
10 S.Ct. 2546, 2557 n.1 (1991); Harris v. Reed, 109 S.Ct. 1038, 1046-
47 (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
Snowden of both cause for the default and prejudice from the alleged constitutional violation. See Wainwright v. Sykes, 97 S.Ct. 2497, 2508 (1977). Snowden seems to make no argument of cause and prejudice for the unexhausted, procedurally defaulted claims. So, we will not consider those claims on the merits. 4 All 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
11 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
12 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,
99 S.Ct. 2213, 2222 [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
no justifications for his failure to raise all of his claims as federal constitutional issues.
13 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,
14 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
15 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).
16 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
17 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
18 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 . . . .
19 .... . . . 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.
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
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. 20 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
21 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.
6 Although the Florida courts denied relief to Snowden, the state courts did not specifically write about expert testimony on credibility. 22 23 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?
....
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?
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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.
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