                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                    MARCH 31, 2008
                                                  THOMAS K. KAHN
                            No. 07-13672
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                D. C. Docket No. 04-01109-CV-J-32-TEM

ROY WILFORD MINTON,


                                                  Petitioner-Appellant,

                                  versus

SECRETARY, DOC,
FLORIDA ATTORNEY GENERAL,


                                                  Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 31, 2008)

Before TJOFLAT, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
       Roy Wilford Minton is a Florida prison inmate. He was convicted in 1993

on three counts of sexual battery upon a child under 12 years of age, one count of a

lewd act upon or in the presence of a child, and one count of false imprisonment of

a child. After exhausting his state remedies, he petitioned the district court for a

writ of habeas corpus. The court denied his petition, and issued a certificate of

appealability (“COA”) on one issue: whether petitioner’s lawyer rendered

ineffective assistance of counsel “in failing to object to the expert testimony of the

Child Protection Team Witness, Marsha Frame.” 1

       Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal courts may not grant habeas relief on claims that were

previously adjudicated in state court, unless 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


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           The State contends that petitioner failed to exhaust this issue, and that we should not
entertain it for that reason. We find that the State expressly waived the failure to exhaust and
therefore consider the ineffective assistance issue.
        Minton’s brief raises issues in addition to the issue the COA presents: (1) the expert on
child sexual abuse was unqualified to render an expert opinion at trial; (2) he was actually
innocent of the charged crimes; (3) the district court improperly refused to allow him to amend
his petition and introduce additional exhibits that demonstrated his actual innocence; and (4) we
may review issues outside of the COA. (Petitioner’s Brief at 10-13, 19-22). Notably, Minton
never asked us to expand the scope of the COA. See Tompkins v. Moore, 193 F.3d 1327, 1332
(11th Cir. 1999) (“[t]he only way a habeas petitioner may raise on appeal issues outside those
specified by the district court in the [COA] is by having the court of appeals expand the [COA]
to include those issues”). Because these claims fall outside the scope of the COA, we decline to
address them. See Dean v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002).

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unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). The “contrary to” and the

“unreasonable application” clauses from § 2254(d)(1) should be analyzed

independently. Gore v. Sec’y for Dep’t of Corr., 492 F.3d 1273, 1293 (11th Cir.

2007), cert. denied, __ S.Ct. __ (2008). Because clearly established federal law

only includes legal rules determined by the Supreme Court, a state court’s decision

cannot be contrary to clearly established federal law if no Supreme Court case

addresses the issue decided. See Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001).

         A state court unreasonably applies clearly established federal law if it

“(1) correctly identifies a legal rule from Supreme Court precedent, but

unreasonably applies that rule to the court’s factual findings; or (2) unreasonably

extends or declines to extend a legal rule from Supreme Court precedent to a new

factual context.” Dill v. Allen, 488 F.3d 1344 (11th Cir.), cert. denied, 128 S.Ct.

651 (2007). Even if we discern that a state court incorrectly applied federal law,

relief is only appropriate if that application also is objectively unreasonable.

Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir. 2002). A state

court’s summary, unexplained rejection of a constitutional issue qualifies as an

adjudication that is entitled to such deference. Id. at 1254.



                                             3
      It is settled beyond peradventure that the Sixth Amendment guarantees a

criminal defendant the right to the effective assistance of counsel, Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984),

and that defendants in state court prosecutions have such right under the

Fourteenth Amendment. A defendant is denied effective assistance of counsel if:

(1) counsel’s performance was deficient because it was unreasonable under

prevailing professional norms (the “performance prong”); and (2) the defendant

was prejudiced by the deficient performance such that a reasonable probability

exists that, but for counsel’s errors, the result of the proceeding would have been

different (the “prejudice prong”). Id. at 688, 694, 104 S.Ct. at 2065, 2068.

      Judicial scrutiny of counsel’s performance must be highly deferential. Id. at

689, 104 S.Ct. at 2065. This deference regarding counsel’s performance “adds

another layer” to the deference we already owe, in the federal habeas petition

context, to a state court’s application of clearly established federal law in denying

the ineffective assistance claim. Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th

Cir. 2004). Also, regarding the prejudice prong, “[a] reasonable probability is a

probability sufficient to undermine confidence in the outcome,” Strickland, 466

U.S. at 694, 104 S.Ct. at 2068, and a court considering an ineffective assistance

claim “must consider the totality of the evidence before the judge or jury,” id. at



                                           4
695, 104 S.Ct. at 2069.

         The Supreme Court has “declined to articulate specific guidelines for

appropriate attorney conduct and instead [has] emphasized that ‘[t]he proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,

156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2052).

         A petitioner may raise an ineffective assistance of counsel claim based on

counsel’s failure to object to expert witness testimony. Dorsey v. Chapman, 262

F.3d 1181,1186 (11th Cir. 2001). Counsel’s failure to object to expert witness

testimony, which improperly bolsters the credibility of another witness, may

constitute unreasonably deficient performance. See id. Under Florida law, “expert

testimony may not be offered to directly vouch for the credibility of a witness.”

Tingle v. State, 536 So.2d 202, 205 (Fla. 1988). However, the Tingle court also

noted:

         an expert may properly aid a jury in assessing the veracity of a victim
         of child sexual abuse without usurping their exclusive function by
         generally testifying about a child’s ability to separate truth from
         fantasy, by summarizing the medical evidence and expressing his
         opinion as to whether it was consistent with [the victim’s] story that
         she was sexually abused, or perhaps by discussing various patterns of
         consistency in the stories of child sexual abuse victims and comparing
         those patterns with patterns in [the victim’s] story.

Id. (quoting United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986)). In Tingle,

                                            5
the court found that expert testimony improperly bolstered a witness when the

expert directly stated that she believed that the child victim was telling the truth.

Id.

      In the due process context, we have held that expert testimony that bolsters

another witness is improper and may result in the denial of fundamental fairness to

the defendant. Snowden v. Singletary, 135 F.3d 732, 738 (11th Cir. 1998). In

Snowden, an expert testified that 99.5 percent of children tell the truth about sexual

abuse and, moreover, never personally encountered a child that lied about abuse.

Id. at 737. We determined that such testimony clearly was improper under Florida

law. Id. at 738 (citing Tingle, 536 So.2d at 205). Moreover, that evidentiary error

denied the defendant fundamental fairness in his trial because the testimony of the

allegedly-abused children “went to the heart of the case,” and the prosecutor

emphasized the expert’s testimony regarding credibility, rather than only touching

on it briefly. Id. at 738-39.

      As an initial matter, we note that this case only concerns the unreasonable

application of federal law because, with the exception of Strickland and Wiggins,

Minton has cited no Supreme Court precedent regarding ineffective assistance of

counsel in the scenario presented here or Supreme Court precedent that might be

considered to be close in point. That said, we find no basis for concluding that



                                            6
counsel’s performance in failing to object to the expert testimony was deficient.

The record demonstrates that the expert never testified that the child victim was

telling the truth or that a certain percentage of child victims of sexual abuse are

truthful. The expert only testified that only a small percentage of her prior cases

involved fictitious allegations, and that nothing from the child victim in Minton’s

case led her to believe that the allegations were fabricated. Because the expert

testimony here was less direct than the improper testimony at issue in Tingle and

Snowden, this case is clearly distinguishable.

      Second, as for Strickland’s prejudice prong, we note that counsel made

several objections during the expert’s testimony and elicited a concession from the

expert on re-cross examination to ensure that the ultimate question of Minton’s

guilt was left to the jury. Therefore, even though the credibility of the child was a

fundamental issue for the jury to decide, we cannot fault the state court’s finding

that counsel’s failure to object caused petitioner no Strickland prejudice.

      Finally, even if we were to assume that counsel was ineffective by failing to

object to the expert testimony, the state court did not unreasonably apply

Strickland in reaching the opposite conclusion. As discussed above, an evaluation

of the performance and prejudice prongs of the Strickland test does not yield a

result on which all reasonable jurists would agree. Therefore, the state court’s



                                           7
rejection of Minton’s ineffective assistance of counsel claim regarding the expert

testimony was not objectively unreasonable, and the district court’s denial of

habeas relief is due to be, and is,

      AFFIRMED.




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