                                                                     [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12862         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        JUNE 13, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 1:07-cv-00010-WLS-RLH

WENDELL HARPER SMITH,

lllllllllllllllllllll                                                  Petitioner-Appellant,

                                            versus

WARDEN DON JARRIEL,

                                                     lllllllllllllllllllllRespondent-Appellee.

                                ________________________

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

                                        (June 13, 2011)

Before EDMONDSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
      Wendell Smith, a Georgia state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 petition. We granted a COA on the

following issue:

      Whether the district court committed a procedural error by declining to
      review the merits of Smith’s claim concerning the state trial court’s
      admission into evidence of two photographs of the victim’s dead body.

We now hold that the district court committed procedural error, and as a result we

reverse.

      We review a district court’s denial of a § 2254 petition de novo. Digsby v.

McNeil, 627 F.3d 823, 830 (11th Cir. 2010). When a district court fails to address

all of the claims presented by the petitioner, however, we “will vacate the district

court’s judgment without prejudice and remand the case for consideration of all

remaining claims.” Clisby v. Jones, 960 F.2d 925, 938 (11th Cir. 1992) (en banc).

      Of course not all errors in state trial proceedings support claims for habeas

relief. As relevant here, a federal court reviewing a state prisoner’s habeas

petition may not “reexamine state-court determinations on state-law questions,”

Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991), but it may

review state evidentiary rulings to determine whether the rulings violated the

petitioner’s due process rights. Felker v. Turpin, 83 F.3d 1303, 1311-12 (11th Cir.

1996). In such instances, the inquiry is limited to determining whether evidentiary

                                          2
errors “‘so infused the trial with unfairness as to deny due process of law.’”

Felker, 83 F.3d at 1311 (quoting Lisenba v. California, 314 U.S. 219, 228, 62 S.

Ct. 280, 286 (1941)) (citations omitted).

       Adhering to these rules, the district court accepted and adopted the

Magistrate Judge’s Report, which dismissed the claim underlying this appeal –

Ground 7 in Smith’s underlying habeas petition – because that claim failed “to

present [a] proper ground[] for habeas corpus relief.” According to the Magistrate

Judge, this is so because:

       Evidentiary errors in the admission of photographs, which are matters
       of state law, ordinarily will not support the granting of habeas relief.
       Smith v. Newsom, 876 F.2d 1461, 1468 (11th Cir. 1989). “It is not the
       province of a federal habeas Court to reexamine state-court
       determinations on state-law questions.” [Estelle, 502 U.S. at 67–68, 112
       S. Ct. at 480].

We take from this discussion that the Magistrate Judge concluded that Smith

failed to plead a federal constitutional violation in his petition, and as a result

denied Smith’s claim as one seeking habeas relief premised upon state evidentiary

errors.1

       1
         Similarly, by describing the Report and Recommendation as “[finding Ground 7] to be
[an] inapplicable ground[] for federal habeas relief,” the District Court appears to have reached
the same conclusion that Ground 7 did not present a claim for relief premised upon the
Constitution. Thus, because neither the Magistrate Judge nor the District Court inquired into the
merits of Smith’s due process claim, the record belies the Respondent’s contention that the
District Court “by implication” ruled on the merits of Smith’s due process claim, and we
therefore reject that argument.

                                                3
      We think, however, that the Magistrate Judge failed to afford Smith’s pro se

petition the liberal construction to which it is entitled. Our longstanding rule is

that the pleadings of a pro se litigant are liberally construed. Bellizia v. Florida,

Dep’t of Corr., 614 F.3d 1326, 1329 (11th Cir. 2010). Accordingly, courts must

show leniency to pro se litigants, even as they should not serve as de facto counsel

or rewrite a pleading in order to sustain an action. GJR Invs., Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds

as recognized in, Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

      A liberal construction of Smith’s petition compels the conclusion that Smith

pled a federal due process violation. Smith’s habeas pleadings described “Ground

Seven” as “Trial court abused its discretion by admitting Two photographs[] . . .

that were highly prejudicial.” Smith later supplemented his petition, explaining in

his “Brief in Support of petition pursuant to 28 U.S.C. 2254” that the prejudice

from the photographs “violated Due Process.” And petitioner’s objections to the

magistrate’s report and recommendation stated that the magistrate erred by not

concluding that the challenged photographs prejudiced his right to a fair trial in

violation of the Fourteenth Amendment. As clarified in these filings, petitioner’s

evidentiary claim was a constitutional due process claim that prejudice from the




                                           4
offending photographs so infected the integrity of his trial as to warrant habeas

relief.

          Because we need not rewrite petitioner’s assertions or otherwise act as

counsel for Smith to conclude he is invoking his constitutional right to due

process, see GJR Invs., 132 F.3d at 1369, his habeas petition should be construed

to raise a claim for habeas relief premised on the Due Process Clause of the United

States Constitution. U.S. Const. amend. XIV. Therefore, we hold that Smith has

presented a proper ground for federal habeas relief.

          The upshot of this holding is that Smith has raised a potentially viable claim

for habeas relief that was not passed upon by the district court’s initial Order

disposing of his habeas petition.2 For this reason, we must vacate the Order below

and remand for further proceedings consistent with this opinion. Clisby, 960 F.2d

at 938.

          REVERSED and REMANDED.




          2
         We hold only that Smith has pled a federal claim, but take no position as to the merits of
that claim.

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