[DO NOT PUBLISH]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: 

Case: 16-12174 Date Filed: 06/27/2017 Page: 1 of 6 
2

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). 

Case: 16-12174 Date Filed: 06/27/2017 Page: 2 of 6 
3

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 

Case: 16-12174 Date Filed: 06/27/2017 Page: 3 of 6 
4

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 

Case: 16-12174 Date Filed: 06/27/2017 Page: 4 of 6 
5

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.

Case: 16-12174 Date Filed: 06/27/2017 Page: 5 of 6 
6

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.

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