           Case: 16-12174   Date Filed: 06/27/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12174
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:13-cv-00921-WHA-SRW



JAMES ANTHONY PRICE,

                                                          Petitioner-Appellant,

                                  versus

WARDEN,
THE ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                                       Respondents-Appellees.

                      ________________________

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

                             (June 27, 2017)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      James Anthony Price, an Alabama prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition for failure to

exhaust his state remedies. In Price’s § 2254 petition, he asserted that his trial

counsel provided ineffective assistance by: (1) withdrawing a request for a

preliminary hearing without his consent (Claim One); (2) failing to investigate the

use of his out-of-state convictions to enhance his sentence under Alabama’s

Habitual Felony Offender Act (Claim Two); (3) failing to object to and preserve

for appeal a challenge to the trial court’s failure to hold a sentencing hearing

(Claim Three); (4) failing to object to the use of his Georgia conviction for

possession of cocaine by consumption to enhance his sentence because that

conviction would not have constituted a felony under Alabama law (Claim Four);

and (5) failing to object to the admission at trial of prior bad-act evidence

regarding his prior robbery conviction (Claim Five). Furthermore, he asserted that

his appellate counsel rendered ineffective assistance by: (1) failing to comply with

Ala. R. App. P. 28(a)(10) in preparing his appellate brief, thereby waiving Price’s

claims regarding the trial court’s failure to give his requested jury instructions and

its denial of his motion to suppress a photographic lineup (Claim Six); and

(2) failing to challenge the use of his Georgia conviction for possession of cocaine

to enhance his sentence under the Habitual Felony Offender Act (Claim Seven).




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      In denying Price’s § 2254 petition, the district court reasoned that Price had

not raised his ineffective assistance of counsel claims in his petition for rehearing

before the Alabama Court of Criminal Appeals. We granted a certificate of

appealability as to whether Price properly exhausted his claims in state court prior

to filing his federal 28 U.S.C. § 2254 petition. On appeal, Price contends that he

raised his claims at each stage of his state appellate proceedings, including in his

Rule 32 petition, his brief to the Alabama Court of Criminal Appeals, his

application for a rehearing in the Alabama Court of Criminal Appeals, and his

petition for a writ of certiorari to the Alabama Supreme Court.

      Whether a claim presented in a 28 U.S.C. § 2254 petition is exhausted

presents a mixed question of law and fact, which we review de novo. Green v.

Nelson, 595 F.3d 1245, 1254 (11th Cir. 2010). Before bringing a habeas action in

federal court, a petitioner must exhaust all state court remedies available for

challenging his conviction, either on direct appeal or in a state post-conviction

motion. 28 U.S.C. § 2254(b), (c). The Supreme Court interpreted § 2254(c) to

require a state prisoner to present his claims to the state’s highest court, even if

review is discretionary, when such review is part of the ordinary appellate review

procedure. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This requirement

intends “to give state courts one full opportunity to resolve any constitutional




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issues by invoking one complete round of the State’s established appellate review

process.” Id.

      In an Alabama state habeas proceeding, a complete round of the state’s

established appellate review process includes an appeal to the Alabama Court of

Criminal Appeals and a petition for discretionary review in the Alabama Supreme

Court. See Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003);

Ala. R. Crim. P. 32.10(a). Before petitioning the Alabama Supreme Court for

certiorari, the petitioner must first file an application for rehearing in the Court of

Criminal Appeals. Ala. R. App. P. 39(c)(1), 40(d)(1). “The application for

rehearing must state with particularity the points of law or the facts the applicant

believes the court overlooked or misapprehended.” Ala. R. App. P. 40(b). We

previously stated that in the context of an Alabama prisoner seeking to challenge a

parole-revocation proceeding, a petitioner properly exhausts state remedies by:

(1) filing a petition for certiorari in state circuit court; (2) appealing the denial of

that petition to the Alabama Court of Criminal Appeals; (3) petitioning the

Alabama Court of Criminal Appeals for rehearing; and (4) seeking discretionary

review in the Alabama Supreme Court. Dill v. Holt, 371 F.3d 1301, 1303 (11th

Cir. 2004).

      Here, Price presented Claims One through Six in his Rule 32 petition, on

appeal before the Alabama Court of Criminal Appeals, and in his petition for


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certiorari before the Alabama Supreme Court. This sufficiently invoked one

complete round of the state’s established appellate review process with respect to

those claims, even though they were not specifically raised in his petition for

rehearing. See Boerckel, 526 U.S. at 845. At each level of the appellate process,

Price filed supporting briefs detailing the factual and legal basis for his ineffective

assistance claims. See Kelley, 377 F.3d at 1343–45. Thus, both the Alabama

Court of Criminal Appeals and the Alabama Supreme Court were given a full

opportunity to resolve Price’s constitutional claims. Boerckel, 526 U.S. at 845.

No case law from our court or Alabama courts suggest that Price was required to

specifically renew each of his claims in his application for rehearing before the

Alabama Court of Criminal Appeals in order to fully exhaust those claims. 1

       Furthermore, Rule 40 of the Alabama Rules of Appellate Procedure requires

that the application for a rehearing “state with particularity the points of law or the

facts the applicant believes the court overlooked or misapprehended.” Ala. R.

App. P. 40(b). Rule 40 does not require a petitioner to present every one of his

claims in his petition for rehearing, and emphasizes only that the petitioner is

required to state the points he believes the court overlooked or misapprehended.

Price complied with that requirement by asserting the Alabama Court of Criminal


1
  Note that Dill, 371 F.3d at 1303, merely states that a petitioner must file for a rehearing with
the Court of Criminal Appeals, but does not address whether the petitioner must include every
one of his claims within that petition. Id.
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Appeals erred in finding that he failed to present evidence to support his claims

because he submitted exhibits with his petition. See Ala. R. App. P. 40(b).

      However, the district court did not err in concluding that Price failed to

exhaust Claim Seven because Price did not raise it before the Alabama Court of

Criminal Appeals and Alabama Supreme Court, and state procedural rules would

bar any attempt by Price to raise that claim in a second Rule 32 proceeding. See

Boerckel, 526 U.S. at 845; Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013); Ala.

R. Crim. P. 32.2(d).

      Accordingly, we affirm as to claim seven, but vacate the district court’s

order as to claims one through six, and remand for further proceedings.

      AFFIRMED IN PART AND VACATED AND REMANDED IN PART.




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