                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 January 8, 2009
                               No. 08-10841                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 03-01829-CV-T-30-MAP

KENNETH DARITY,


                                                             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
                       _________________________

                               (January 8, 2009)

Before BARKETT, WILSON and FAY , Circuit Judges.

PER CURIAM:

     Kenneth Darity, a pro se Florida state prisoner serving a 30-year sentence for
sexual battery, appeals the district court’s finding that a claim in his 28 U.S.C.

§ 2254 habeas petition – ineffective assistance of counsel for failing to impeach the

victim’s testimony – was not exhausted and was now procedurally defaulted.

Darity argues that his claim was exhausted because the general allegations made in

his state motion were more fully elaborated in other parts of that motion. We

issued the following COA: “Whether the district court erred when it found that

[Darity] failed to exhaust his state court remedies with regard to whether trial

counsel was ineffective for failing to impeach victim’s testimony.” For reasons set

forth below, we vacate and remand.

      Whether Darity is procedurally barred from raising particular claims is a

mixed question of fact and law that we review de novo. Ogle v. Johnson, 488 F.3d

1364, 1368 (11th Cir. 2007). Habeas petitioners generally cannot raise claims in

federal court if those claims were not first exhausted in state court. 28 U.S.C.

§ 2254(b)(1); Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th

Cir. 2004). It is not sufficient for exhaustion that “all the facts necessary to support

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

was made.” Kelley, 377 F.3d at 1343-44. Rather, a petitioner must have given the

state court an “opportunity to apply controlling legal principles to the facts bearing

upon (his) constitutional claim.” Id. at 1344 (quotation omitted). For example, we



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have stated that habeas petitioners may not present particular factual instances of

ineffective assistance of counsel in their federal petitions that were not first

presented to the state courts. Id.

       Exhaustion requirements are not so rigid as to require a verbatim restatement

of the claims brought in state court, but a petitioner must present his claims to the

state court “such that a reasonable reader would understand each claim’s particular

legal basis and specific factual foundation.” Id. at 1344-45 (requiring transparent

presentation to the state courts of counsel’s specific acts or omissions that resulted

in prejudice). A pro se petitioner should be afforded some leniency in this respect,

as his motions and briefs should be construed liberally. Ogle, 488 F.3d at 1369. In

short, the exhaustion requirement is satisfied when the petitioner fairly presented

the issue in state court, even if the state did not rule on it. Id. at 1369.

       Procedural default can arise when a claim is unexhausted and it is clear that

the unexhausted claim would now be procedurally barred under state law. Id. at

1370. When it is clear that an unexhausted claim would be procedurally barred in

state court, the district court should treat this claim as if procedurally defaulted,

and the petition denied with prejudice. Id.

       Based on a review of the record and the parties’ briefs, we hold that the

district court erred in finding that Darity did not exhaust his claim that his counsel



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was ineffective for failing to impeach the victim’s testimony. Darity sufficiently

exhausted the claim in his state post-conviction motion by referring to the

impeachment generally in one section of his motion and in another specifying the

particular areas where impeachment was appropriate. Because Darity exhausted

his claims, the district court also erred in finding that Darity’s federal habeas

petition was procedurally defaulted.

       Accordingly, we vacate and remand for further consideration of the § 2254

petition.

       VACATED AND REMANDED.




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