William Gray, Jr. v. R. Lee
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:02-hc-00335-BO. Copies to all parties and the district court. . Mailed to: William Gray. [14-7230]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM ROBERT GRAY, JR.,
Petitioner - Appellant,
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)
June 19, 2015
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Affirmed by unpublished per curiam opinion.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,
Unpublished opinions are not binding precedent in this circuit.
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murder and sentenced to death in North Carolina state court.
See Gray v. Banker, 529 F.3d 220, 223 (4th Cir. 2008).
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
death sentence and imposed a sentence of life imprisonment if
the state did not initiate new sentencing proceedings within 180
See J.A. 181.
proceedings had not taken place.
In 2013, Gray filed several
pro se motions, including what is best construed as a motion
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
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resentencing hearing had already occurred, the district court
Subsequently, the district court determined the delay in Gray’s
during this five-year period to his benefit.
proceeding, Gray appeals the district court’s order denying his
motion for reconsideration.
A timely appeal of an order denying
order and the underlying order before the appeals court.
Dove v. CODESCO, 569 F.2d 807, 809-10 (4th Cir. 1978).
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
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
actually resentenced him.
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
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
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