                                                              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?

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?


                                                      Page 1 of 2
....

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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