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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12254
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:16-cv-00844-GKS-TBS



GEORGE C. SNEATHEN,

                                                         Petitioner-Appellant,

                                versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                      Respondents-Appellees.

                      ________________________

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

                           (September 9, 2019)

Before WILLIAM PRYOR, GRANT and ANDERSON, Circuit Judges.

PER CURIAM:
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      George C. Sneathen, a Florida prisoner, appeals the denial of his petition for

a writ of habeas corpus. 28 U.S.C. § 2254. Sneathen petitioned for relief from his

convictions for the sexual battery of and for the lewd and lascivious molestation of

M.G., Fla. Stat. §§ 794.011(2), 800.04(5)(b), after the Florida courts rejected his

pro se postconviction motion challenging the effectiveness of his trial counsel, Fla.

R. Crim. P. 3.850. We granted Sneathen a certificate of appealability to address

two issues: whether the district court erred by rejecting as procedurally defaulted

Sneathen’s claim that trial counsel was ineffective for failing to object when the

trial court sent a video recording of M.G.’s interview to the jury room; and whether

the district court erred by treating the per curiam affirmance of Sneathen’s

convictions on direct appeal as an adjudication of his evidentiary issue that

defeated his claim that trial counsel was ineffective for failing to object to hearsay

evidence as unduly prejudicial. We affirm the latter decision of the district court.

But because Sneathen has cause to excuse his failure to exhaust his claim

concerning trial counsel’s failure to object to M.G.’s interview and that claim is

substantial, we vacate the order denying that claim and remand for further

proceedings. See Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).

                                I. BACKGROUND

      A Florida grand jury charged Sneathen, M.G.’s brother-in-law, in a four-

count indictment for committing sexual battery by having “his penis penetrate or


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have union with the mouth of [M.G.]” and by having sex with M.G., Fla. Stat.

§ 794.011(2), and for committing lewd and lascivious molestation by “touch[ing]

or fondl[ing] the sexual organ of [M.G.]” and by “forc[ing] or entic[ing] [M.G.]

. . . to touch [his] penis,” id. § 800.04(5)(b). The state notified Sneathen that

M.G.’s mother, a deputy sheriff, an investigator of the Department of Children and

Families, and a forensic interviewer on the Child Protection Team would testify

regarding out-of-court statements that M.G. made about the abuse. Sneathen

objected. He argued that the hearsay statements were unreliable, see Fla. Stat.

§ 90.803(23), and that admission of the statements would violate his right of

confrontation under the Sixth Amendment because M.G. was available as a

witness. Sneathen also moved in limine to exclude the hearsay testimony as prior

consistent statements that were inadmissible to bolster M.G.’s testimony. And

Sneathen moved to have M.G. declared incompetent to testify. The trial court

overruled all of Sneathen’s objections and admitted the statements of the hearsay

witnesses under the statutory exception for hearsay statements of young abuse

victims, Fla. Stat. § 90.803(23).

      Before the state called its first witness, Sneathen objected to “any hearsay

witness” as “bolstering and cumulative” and referred to four cases he had

submitted to the trial court. Three of the cases discussed the requirements for

admissibility of a child’s hearsay statements under section 90.803(23) and the right


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of a defendant to move separately to exclude the statements as unduly prejudicial

under section 90.403 of the Florida Statutes. See Pardo v. State, 596 So. 2d 665

(Fla. 1992); Garcia v. State, 659 So. 2d 388 (Fla. Dist. Ct. App. 1995); Perry v.

State, 593 So. 2d 620 (Fla. Dist. Ct. App. 1992). In the fourth case, an appellate

court concluded that the defendant failed to preserve his undue prejudice challenge

to a child’s hearsay statements by failing to object to or move to strike the

statements on a ground specified in section 90.403. Anderson v. State, 598 So. 2d

276, 277 (Fla. Dist. Ct. App. 1992). The trial court overruled Sneathen’s objections

and allowed M.G.’s mother, the deputy sheriff, the investigator, and the forensic

interviewer to repeat M.G.’s out-of-court statements about Sneathen’s abuse.

      Seven-year-old M.G. testified that the highest number she could think of was

100 and that, more than once while staying overnight with her sister, Sneathen

touched her front part with his mouth and with his hands, but not with other parts

of his body, and that she touched his penis with her hands, but she never saw his

penis. On cross-examination, M.G. testified that Sneathen never put his finger or

penis inside her, that she had a hard time remembering what the truth was, and that

her mom had talked to her a lot about what to say in court. After the trial court

excused M.G., Sneathen played an excerpt of M.G.’s deposition in which she said

that Sneathen’s mouth never touched her “private part” and her mouth never

touched his “private part.”


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      Before the state played the video recording of M.G.’s interview, Sneathen

“renew[ed] [his] objection.” He argued to exclude the interview as improper

bolstering, cumulative, “contrary to [M.G.’s] cross-examination,” and prejudicial.

During the interview, M.G. said that Sneathen undressed and removed her clothes

and that he touched her vagina with his penis and his finger 100 times. M.G. also

said that Sneathen made her touch his penis, but she did not know what body part

she used to touch him, and that Sneathen put his penis inside her.

      The state also introduced a video recording of Sneathen’s custodial

interview during which he described three incidents involving M.G. Sneathen

stated that M.G. woke him one time by touching his penis and he pushed her away

while telling her she could not do that. Sneathen explained that he attributed the

incident to M.G.’s curiosity. Sneathen also stated that, on two other occasions,

M.G. woke him by putting her face on his genitalia and he pushed her away.

Sneathen said that he did not know what M.G. was doing with her face down there.

When the video ended, the state rested its case.

      Sneathen rested his case without presenting any evidence. He moved for a

judgment of acquittal on the count of sexual battery that alleged he had sex with

M.G. The trial court granted the motion.

      After the trial court instructed the jury, but before releasing it to deliberate,

the trial court and the parties conferred about sending exhibits to the jury room.


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The trial court expressed its “preference . . . to send the evidence and the

mechanism to play them back to the jury . . . [to make its own] decision regarding

whether to play or not play.” Neither party objected, and defense counsel

remarked, “I think that’s what our boss says is best, that we don’t get involved in

that . . . .”

        After the jury began deliberating, it sent the trial court a note requesting to

“see the transcripts of [M.G.’s] in-court entire testimony.” With the parties’ assent,

the trial court told the jury that it could request to have M.G.’s testimony read back

in open court, but the jury made no such request. About two and a half hours later,

the jury returned verdicts finding Sneathen guilty of sexual battery for having “his

penis penetrate or have union with [M.G.’s] mouth,” Fla. Stat. § 794.011(2), and of

two counts of lewd and lascivious molestation of a minor, id. § 800.04(5)(b). The

trial court sentenced Sneathen to imprisonment for life.

        On direct appeal, Sneathen argued that the trial court abused its discretion by

refusing to exclude the statements of the hearsay witnesses as unduly prejudicial

under section 90.403. The state responded that the hearsay statements were reliable

and were not cumulative, over-emphasized at trial, or prejudicial and that any error

caused by admitting the statements was harmless. The Fifth District Court of

Appeal affirmed Sneathen’s convictions summarily. Sneathen v. State, 998 So. 2d

624 (Fla. Dist. Ct. App. 2008).


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      Sneathen filed pro se a motion for state postconviction relief. See Fla. R.

Crim. P. 3.850. Sneathen identified eight claims for relief, including a claim that

trial counsel was ineffective for failing to object to the hearsay witnesses in a

manner that alerted the trial court to assess the evidence for undue prejudice, see

Fla. Stat. § 90.403. A Florida court denied Sneathen’s motion and ruled that,

“[s]ince the merits of the[] issue[] [was] fully addressed on direct appeal,

[Sneathen] . . . [could] not relitigate [it] now by rephrasing [it] in terms of

ineffective assistance of counsel.” Sneathen appealed.

      The Fifth District Court of Appeal affirmed the denial of Sneathen’s claim

of ineffective assistance of trial counsel and six other grounds for postconviction

relief, but the court reversed and remanded for consideration of an eighth claim.

Sneathen v. State, 161 So. 3d 570 (Fla. Dist. Ct. App. 2014). On remand, Sneathen

moved pro se to supplement his postconviction motion with a new claim that trial

counsel was ineffective for failing to object when the trial court sent M.G.’s

interview to the jury room, but the postconviction court did not consider

Sneathen’s new claim. During an evidentiary hearing, trial counsel testified that

Sneathen’s defense was that M.G.’s account had been contaminated by several

interviews she underwent following the initial disclosure of abuse to her mother

and by her mother’s continuous questioning. The postconviction court rejected




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Sneathen’s eighth claim, and the appellate court affirmed summarily. Sneathen v.

State, 215 So. 3d 1247 (Fla. Dist. Ct. App. 2016).

      Sneathen filed pro se a federal petition for a writ of habeas corpus, which the

district court denied. 28 U.S.C. § 2254. The district court treated as unexhausted

and procedurally defaulted Sneathen’s claim that trial counsel was ineffective for

failing to object when the trial court sent M.G.’s interview to the jury room. The

district court determined that trial counsel did not perform deficiently because a

choice not to object could have been consistent with the theory of defense and with

a determination that “there was very little downside in allowing the jury to re-view

the . . . video.” The district court also determined that counsel’s inaction did not

prejudice Sneathen because he “only speculate[d] that the jurors actually re-viewed

the . . . video during their deliberations” and because “the jury had sufficient other

evidence to support its verdict.” And the district court denied as meritless

Sneathen’s claim that trial counsel was ineffective for failing to object to the

hearsay witnesses as unduly prejudicial. The district court declined to determine

whether Sneathen “properly exhausted [the] Claim . . . because [it] clearly fail[ed]

on the merits” under the two-part test of Strickland v. Washington, 466 U.S. 668

(1984). The district court determined that trial counsel was not ineffective because

he “did seek to exclude . . . M.G.’s hearsay statements” as “bolstering and

cumulative.” The district court also determined that Sneathen could not prove


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prejudice because the state court had “affirm[ed] [Sneathen’s] conviction . . . and

rejected the very argument” of undue prejudice on direct appeal.

                          II. STANDARDS OF REVIEW

       We review de novo the denial of a petition for a writ of habeas corpus.

Gissendaner v. Seaboldt, 735 F.3d 1311, 1316 (11th Cir. 2013). “[W]hether a

particular claim is subject to the doctrine of procedural default . . . [presents] a

mixed question of fact and law, which we review de novo.” Judd v. Haley, 250

F.3d 1308, 1313 (11th Cir. 2001). We review related findings of fact for clear

error. Id. at n.2.

                                  III. DISCUSSION

       Sneathen raises two arguments. Sneathen argues that he established cause

and prejudice to overcome the procedural default that otherwise barred his claim

concerning trial counsel’s failure to object to sending M.G.’s interview to the jury

room. Sneathen also contends the district court erred in determining that the

affirmance of his convictions on direct appeal barred his claim about trial counsel’s

failure to object to the admission of hearsay statements as unduly prejudicial. We

address each argument in turn.

 A. The District Court Erred by Rejecting as Procedurally Defaulted Sneathen’s
 Claim that Trial Counsel was Ineffective for Failing to Object to Sending M.G.’s
                          Interview to the Jury Room.




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      The Supreme Court created in Martinez a “narrow exception” that allows a

state prisoner to obtain federal review of unexhausted claims of ineffective

assistance of trial counsel in a petition for a writ of habeas corpus. 132 S. Ct. at

1315. The prisoner must prove that cause exists to excuse the failure to exhaust and

that his “underlying ineffective-assistance-of-trial counsel claim is a substantial

one, which is to say that . . . the claim has some merit.” Id. at 1318. Cause exists

when state law requires the prisoner to raise a claim of ineffective assistance of

trial counsel in his first collateral proceeding and when either the prisoner

proceeded pro se or his appointed postconviction counsel was ineffective. Id. Proof

of “cause and prejudice does not entitle the prisoner to habeas relief”; instead, “[i]t

merely allows a federal court to consider the merits of a claim that otherwise

would have been procedurally defaulted.” Id. at 1320.

      To establish ineffective assistance of counsel, the prisoner must prove that

his counsel’s performance was deficient and that the deficiency prejudiced his

defense. Strickland, 446 U.S. at 687. Counsel’s performance is deficient if it falls

below the wide range of competence demanded of attorneys in criminal cases. Id.

at 688; Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). The prisoner

satisfies the prejudice element if he establishes that “there [was] a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. To determine


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prejudice, the reviewing court must consider the merits of the underlying claim.

Cross v. United States, 893 F.2d 1287, 1290 (11th Cir. 1990). That examination

requires us to determine whether the state court would have applied harmless error

review. Heath, 941 F.2d at 1136–37.

        Cause exists to excuse Sneathen’s failure to exhaust his claim in the state

courts. Florida prisoners ordinarily must present claims of ineffective assistance of

trial counsel in their first motion for postconviction relief. Bruno v. State, 807 So.

2d 55, 63 (Fla. 2001). Sneathen litigated his postconviction motion pro se after the

state court denied his motion for appointed counsel. Sneathen’s pro se status

establishes cause to excuse his procedural default. See Martinez, 132 S. Ct. at

1318.

        Sneathen’s claim is also substantial. See id. Florida courts have long held

“that videotaped out-of-court interviews with child victims introduced into

evidence under section 90.803(23) shall not be allowed into the jury room during

deliberations.” Young v. State, 645 So. 2d 965, 967 (Fla. 1994); Tillis v. State, 716

So. 2d 819, 820 (Fla. Dist. Ct. App. 1998). The prohibition stems from concern

“that the child’s statements will be unfairly given more emphasis than other

testimony.” Young, 645 So. 2d at 967. Submission of the child’s interview to the

jury is not fundamental error, but neither is it harmless. Id. at 968; see Jassan v.

State, 749 So. 2d 511, 512 (Fla. Dist. Ct. App. 1999) (“[D]elivery of the victim’s


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videotaped statement to the jury may be harmful and prejudicial but not

fundamental error.”). And at least one Florida appellate court has recognized that

trial counsel’s failure to object to submitting a child’s interview to the jury may

constitute ineffective assistance. Ruiz v. State, 108 So. 3d 694, 696 (Fla. Dist. Ct.

App. 2013). Because there is “some merit” to Sneathen’s claim of ineffective

assistance of trial counsel, we vacate the order denying Sneathen’s claim as

procedurally defaulted and remand for the district court to consider the claim on

the merits.

    B. The District Court Correctly Ruled that the Affirmance of Sneathen’s
Convictions on Direct Appeal Barred His Claim that Trial Counsel was Ineffective
        for Failing to Object to Hearsay Witnesses as Unduly Prejudicial.

      The Antiterrorism and Effective Death Penalty Act of 1996 establishes a

highly deferential standard of review for federal claims raised by state prisoners

that have been “adjudicated on the merits in State court proceedings.” 28 U.S.C.

§ 2254(d). The state prisoner cannot obtain a writ of habeas corpus unless the

decision of state court was “contrary to, or involved an unreasonable application

of, clearly established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” Id.

      “When a state court refuses to readjudicate a claim on the ground that it has

been previously determined,” that ruling “provides strong evidence that the claim


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has already been given full consideration by the state courts and thus is ripe for

federal adjudication.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1283 (11th Cir.

2016) (quoting Cone v. Bell, 556 U.S. 449, 467 (2009)). On direct appeal,

Sneathen argued that the admission of the hearsay statements unduly prejudiced

him, see Fla. Stat. § 90.403, and the state responded on the merits. In that

circumstance, the Florida courts proceed to the merits of the issue raised on appeal.

See Blanton v. State, 880 So. 2d 798, 801 n.2 (Fla. Dist. Ct. App. 2004)

(expressing doubt that the defendant preserved his argument that the admission of

child hearsay statements violated his right of confrontation but “addressing the

issue on its merits” because the state did “not argue waiver”), disapproved in part

on other grounds, 978 So. 2d 149 (Fla. 2008). The district court was entitled to

treat the affirmance of Sneathen’s convictions as an adjudication of his evidentiary

issue and to give deference to that decision. See Harrington v. Richter, 562 U.S.

86, 98 (2011) (“By its terms, Section 2254(d) bars relitigation of any claim

‘adjudicated on the merits,’” even if the “state court’s decision is unaccompanied

by an explanation.”).

      The district court did not err by denying Sneathen habeas relief. Even if we

accept as true that trial counsel performed deficiently by failing to object to the

hearsay testimony as unduly prejudicial, Sneathen could not prove that trial

counsel’s inaction prejudiced him. It is not enough for Sneathen to prove that the


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error had some conceivable effect on the outcome of the trial; Sneathen must prove

that trial counsel’s inaction “so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686. Sneathen cannot establish a reasonable

probability that an objection based on undue prejudice would have succeeded. The

decision of the state court on direct appeal summarily rejecting Sneathen’s

argument about the evidentiary issue is entitled to deference. See Harrington, 562

U.S. at 98; see also Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355 (11th

Cir. 2005) (“It is a ‘fundamental principle that state courts are the final arbiters of

state law, and federal habeas courts should not second-guess them on such

matters.’”). And trial counsel cannot be faulted for failing to make a meritless

objection. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“a

lawyer’s failure to preserve a meritless issue plainly cannot prejudice a client”).

                                 IV. CONCLUSION

      We AFFIRM in part, VACATE in part, and REMAND for further

proceedings consistent with this opinion.




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