CHRISTOPHER LEE PRICE, Petitioner-Appellant, v. RICHARD F. ALLEN, Respondent-Appellee. 11th Circuit. Case No. 09-11716. May 10, 2012. Appeal from the U.S. District Court for the Northern District of Alabama (No. 03-01912-CV-LSC-JEO).
(Before TJOFLAT, BARKETT and WILSON, Circuit Judges.)
[Original Opinion at 23 Fla. L. Weekly Fed. C877a]
(PER CURIAM.) We previously issued an opinion in this case, Price v. Allen, No. 09-11716, slip op. (11th Cir. March 30, 2012). On Price’s motion for panel rehearing, we hereby vacate our earlier opinion and substitute this one in its place to more fully address Price’s claim regarding the prosecutor’s statements on future dangerousness during the penalty phase of his trial.
Christopher Lee Price appeals from the denial of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.
I. FACTUAL AND PROCEDURAL
BACKGROUND
Price was convicted on February 5, 1993 for the capital felony murder of William Lynn, a minister in the small town of Fayette County, Alabama, that occurred during the course of a robbery at Lynn’s home. A detailed description of the facts of this crime can be found in the Alabama state court’s decision in Price’s direct criminal appeal. See Price v. State, 725 So. 2d 1003, 1011-12 (Ala. Crim. App. 1997). Price was tried and found guilty for capital murder and robbery and the jury voted ten to two to recommend a death sentence for the murder, which the state trial court followed, sentencing Price to death. On direct appeal, the Court of Criminal Appeals of Alabama1 and Alabama Supreme Court2 affirmed Price’s conviction and sentence, and the United States Supreme Court denied certiorari review.3
Price commenced his state habeas court proceedings by filing a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Upon the state’s motion and after having the opportunity to amend his petition, the state habeas court dismissed Price’s petition in part and denied it in part, which the Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court denied certiorari review.
Concurrent with his request for discretionary review in the Alabama Supreme Court, Price filed in federal court for a writ of habeas corpus, which was stayed until the conclusion of his state habeas proceedings. Upon review by the district court, Price’s federal habeas petition was denied in part and dismissed in part. We granted Price’s request for a Certificate of Appealability on the following issues:
· whether the state trial court erred in denying Price’s motion for a change of venue;
· whether Price’s counsel was ineffective in litigating a change of venue motion;
· whether the prosecution’s comments during the penalty phase about Price’s future dangerousness constituted reversible error;
· whether Price’s counsel was ineffective during the penalty phase of his trial; and
· whether the district court erred in denying Price’s request for an evidentiary hearing.
II. APPLICABLE STANDARDS
OF REVIEW
We review the district court’s conclusions on legal questions and mixed questions of law and fact de novo and its factual findings for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009) [22 Fla. L. Weekly Fed. C143a], cert. denied, 130 S. Ct. 3399 (2010). However, our review of a state court’s decision4 is limited by the terms of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1218 (1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03 (2000).