William Gray, Jr. v. R. Lee

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:02-hc-00335-BO. Copies to all parties and the district court. [999631830]. Mailed to: William Gray. [14-7230]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7230

WILLIAM ROBERT GRAY, JR.,
Petitioner - Appellant,
v.
R.C. LEE, Warden of Central Prison, Raleigh, North Carolina,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:02-hc-00335-BO)

Submitted:

June 19, 2015

Decided:

July 31, 2015

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.
Danielle Marquis Elder,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
William

Robert

Gray,

Jr.

was

convicted

of

first

degree

murder and sentenced to death in North Carolina state court.
See Gray v. Banker, 529 F.3d 220, 223 (4th Cir. 2008).

He

successfully appealed the U.S. district court’s denial of his
petition for the writ of habeas corpus.

We remanded the case

with instructions to the district court to grant the writ unless
the

state

reasonable
district

afforded
time.

court

him
See

a

id.

entered

an

new
at

sentencing
242.

order

On

that

hearing

August

released

within

a

7,

2008,

the

Gray

from

his

death sentence and imposed a sentence of life imprisonment if
the state did not initiate new sentencing proceedings within 180
days.

See J.A. 181.

Nearly

five

years

later,

proceedings had not taken place.

remarkably,

resentencing

In 2013, Gray filed several

pro se motions, including what is best construed as a motion
under

28

U.S.C.

constitutional

§ 2241

grounds. ∗

asking

for

Mistakenly

∗

his

release

believing

on
that

various
Gray’s

It is our “longstanding practice . . . to classify pro se
pleadings from prisoners according to their contents, without
regard to their captions.” United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003).
Gray’s filings principally attacked
the five-year long delay in the state’s failure to resentence
him; in other words, the execution of his sentence.
See In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“[A]ttacks on the
execution of a sentence are properly raised in a § 2241
petition.”).

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resentencing hearing had already occurred, the district court
denied

his

motion

as

moot.

Gray

moved

for

reconsideration.

Subsequently, the district court determined the delay in Gray’s
resentencing

proceedings

counsel

negotiated

had

was
with

reasonable,
the

state

because

several

his

trial

postponements

during this five-year period to his benefit.
Now

represented

by

counsel

from

his

original

habeas

proceeding, Gray appeals the district court’s order denying his
motion for reconsideration.
a

motion

for

A timely appeal of an order denying

reconsideration

automatically

brings

both

that

order and the underlying order before the appeals court.

See

Dove v. CODESCO, 569 F.2d 807, 809-10 (4th Cir. 1978).

To the

extent Gray’s appeal requires a certificate of appealability,
see United States v. McRae, No. 13-6878,

2015 WL 4190665, at

*5-6 (4th Cir. July 13, 2015), we have independently reviewed
the record and conclude he has not made the requisite showing.
See 28 U.S.C. § 2253(c)(2) (requiring “a substantial showing of
the denial of a constitutional right”).

We therefore hold that

the district court’s denial of Gray’s motion for reconsideration
is affirmed.
We

note

that

in

his

briefing,

Gray

advances

a

second

argument unrelated to his resentencing predicated on McQuiggin
v. Perkins, 133 S. Ct. 1924 (2013).

This actual innocence claim

really goes to the validity of Gray’s underlying conviction.
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Gray of course could not have brought a separate § 2254 petition
challenging

his

new

judgment

actually resentenced him.

on

this

basis

until

the

state

But, the claim is improperly raised

here because it was outside the scope of the court’s decision on
his § 2241 sentencing challenge, and therefore never before the
district court.

We further note that Gray has not moved for an

order authorizing the district court to consider a second or
successive habeas corpus application, and we do not today decide
whether such authorization would be appropriate.

The opinion of

the district court is
AFFIRMED.

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