In re: Terrence Wright
Filing
PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion: denying Motion for authorization to file successive habeas application (Local Rule 22(d)) [999652923-2]. Originating case number: 2:07-cv-00014-GCM. [999860643]. [15-281]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-281
In re:
TERRENCE LEROY WRIGHT, a/k/a Terrence Wright El,
Movant.
On Motion for Authorization to File a
Second or Successive Application.
Argued:
May 12, 2016
Decided:
June 21, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Motion denied by published opinion.
Judge Thacker wrote the
opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED: Christopher Ryan Ford, MAYER BROWN LLP, Washington,
D.C., for Movant. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Respondent. ON BRIEF: Roy
Cooper, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent.
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THACKER, Circuit Judge:
North
moves
this
Carolina
court
state
for
prisoner
authorization
Terrence
to
file
successive application for habeas corpus relief.
§
2244(b)(3).
U.S.C.
§
His
2241”
proposed
petition
and
application
challenges
is
the
Leroy
a
Wright
second
or
See 28 U.S.C.
styled
as
execution
a
“28
of
his
sentence, rather than the validity of his underlying conviction
and sentence.
In
his
opening
motion as unnecessary.
brief,
Wright
asks
us
to
deny
his
He claims that his proposed application
properly arises under § 2241, not § 2254, and therefore, he is
not
required
to
seek
successive application.
authorization
to
file
a
second
or
In any event, Wright submits that if he
is required to seek authorization, his claims are not “second or
successive.”
We disagree on both counts and deny the motion.
I.
Factual and Procedural Background
Wright was convicted in North Carolina Superior Court
of first-degree burglary and second-degree murder.
1996,
he
was
sentenced
burglary conviction.
to
30
years
of
On April 11,
imprisonment
for
the
On February 4, 1997, he was sentenced to a
2
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term of life imprisonment for the murder conviction. 1
After an
unsuccessful direct appeal in North Carolina, in December 1998,
Wright
was
sent
to
criminal charges.
burglary,
South
Carolina
criminal
to
face
separate
state
In March 1999, he was convicted of murder,
sexual
conduct,
Charleston County, South Carolina.
Carolina
to
serve
his
sentences
and
grand
larceny
in
Wright returned to North
for
the
crimes
he
committed
there, and South Carolina placed a detainer on him.
After
Wright
exhausted
his
state
post-conviction
remedies, he filed his first federal habeas petition pursuant to
§ 2254 in August 2007, raising 16 claims varying from alleged
double
judge.
jeopardy
violations
to
improper
conduct
by
the
trial
The district court dismissed the petition as untimely.
See Wright-Bey v. N. Carolina, No. 2:07-cv-17, 2007 WL 2583400,
at *1 (W.D.N.C. Sept. 7, 2007).
Wright appealed, but we denied
a certificate of appealability (“COA”) and dismissed the appeal.
See Wright-Bey v. N. Carolina, 268 F. App’x 266 (4th Cir. 2008).
On March 21, 2012, Wright filed another federal habeas
§
2254
petition,
claiming,
inter
1
alia,
that
North
Carolina
Although not evident from the record in this appeal, it
appears Wright was also convicted of robbery with a dangerous
weapon, larceny, and breaking and entering in North Carolina,
and, on February 4, 1997, he was sentenced to 40 years for the
robbery and 10 years for breaking and entering and larceny. See
Wright-Bey v. N. Carolina, 2:07-cv-14 (W.D.N.C. July 2, 2007),
ECF No. 1-3, at *17-24.
3
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lacked jurisdiction over him because he is a Moorish-American
National.
The
district
court
frivolous on August 21, 2012.
dismissed
the
petition
as
See Wright-El v. Jackson, No.
2:12-cv-6, 2012 WL 3614452, at *2 (W.D.N.C. Aug. 21, 2012).
And
again, we dismissed his appeal and declined to issue a COA.
See
Wright v. Jackson, 502 F. App’x 339 (4th Cir. 2013).
Wright filed yet another federal habeas petition on
February 14, 2013, this time styled as a “28 U.S.C. § 2241”
petition, wherein he asked the court to release his obligations
under an “appearance bond.”
J.A. 149. 2
The district court
dismissed the petition for failure to obtain authorization to
file a second or successive application from this court.
See
Wright v. Graham Cnty. Clerk of Court, No. 2:13-cv-9 (W.D.N.C.
March 25, 2013), ECF No. 3. 3
Undeterred,
instant
motion.
He
on
September
attached
a
2,
2015,
proposed
Wright
filed
application
the
setting
forth the following allegations:
2
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this matter.
3
It does not appear that Wright appealed this decision.
But he filed a separate complaint in the United States District
Court for the District of Columbia, alleging constitutional
violations on the part of North and South Carolina officials.
The district court construed the complaint as a habeas petition
and 42 U.S.C. § 1983 action and dismissed it on May 28, 2014.
See El v. North Carolina, No. 1:14-cv-908 (D.D.C. May 28, 2014),
ECF Nos. 3, 4.
4
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(1) Wright contends he was sentenced under
North
Carolina’s
Fair
Sentencing
Act
(“FSA”), not the Structured Sentencing Act
(“SSA”) in effect at the time of his
sentencing. But he claims he is nonetheless
being treated as an SSA inmate, and thus,
“prison and parole authorities” have not
been calculating his “gain time,” “merit[]
time,” and “good time” correctly, and he is
entitled to 34 1/2 years of credit.
J.A.
11-12.
(2) Wright “was told [he] can’t go to honor
grade” status, and therefore become eligible
for parole, “because of the [South Carolina]
detainer.”
J.A. 13.
But Wright claims he
cannot challenge his detainer until he is
released on parole. In sum, Wright believes
he should be treated as an FSA inmate,
rather than an SSA inmate, because FSA
inmates “were able to be paroled to wherever
a detainer was pending . . . .” Id. at 14.
(3) By applying the SSA to his term of
imprisonment, rather than the FSA, the
“prison system” has committed an “ex post
facto” violation. J.A. 15.
(4) The FSA requires that Petitioner’s
parole status be reviewed every year, but it
is currently being reviewed every three
years.
He claims this treatment violates
his due process and equal protection rights
under the Constitution. 4
4
Wright also claims that the parole board does not
“write . . . to tell [him] why they denied [him] parole,” J.A.
17, and he requests that his name be changed in the official
prison records to correspond with his Moorish-American identity.
We decline to address these claims because they are not properly
raised in a habeas petition. See Wilkinson v. Dotson, 544 U.S.
74, 82 (2005) (“Because [petitioners’] claim[s] would [not]
necessarily spell speedier release, neither lies at ‘the core of
habeas corpus’” (quoting Preiser v. Rodriguez, 411 U.S. 475, 489
(1973))); see also Pierre v. United States, 525 F.2d 933, 935
(5th Cir. 1976) (explaining a “suit seeking habeas corpus
(Continued)
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Therefore,
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Wright
does
not
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challenge
the
underlying
convictions that landed him in jail in the first place.
he
challenges
only
administrative
procedures applied to his sentence.
rules,
state
Rather,
decisions,
and
We have typically found
such challenges to be contesting the “execution” of a sentence.
See, e.g., Fontanez v. O’Brien, 807 F.3d 84, 87 (4th Cir. 2015)
(finding a petitioner to be challenging the “execution of [his]
sentence”
where
he
“d[id]
not
seek
to
have
[the
original
sentencing] order set aside”); United States v. Miller, 871 F.2d
488, 490 (4th Cir. 1989) (per curiam) (finding that a “claim for
credit
against
a
sentence”
challenges
the
“execution
of
the
sentence rather than the sentence itself”).
II.
Legal Analysis
To properly rule on Wright’s motion, we must decide
whether a convicted state prisoner challenging the execution of
his sentence is required to apply for authorization to file a
second or successive habeas application.
If the answer is yes,
we then decide whether his habeas application is indeed second
relief” “cannot be utilized as a base for the review of a
refusal to grant collateral administrative relief or as a
springboard to adjudicate matters foreign to the question of the
legality of custody”).
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or successive, and if so, whether he has met the authorization
requirements.
These
questions
require
us
to
address
the
interplay among three federal statutes set forth in Title 28 of
the United States Code: § 2241, § 2254, and § 2244.
A.
Is Wright Required to Seek Authorization to File a Second or
Successive Habeas Application?
By way of background:
•
Section 2241 bestows upon district courts
the power to grant habeas corpus relief to a
“prisoner” who “is in custody in violation
of the Constitution or laws or treaties of
the United States.”
28 U.S.C. § 2241(a),
(c)(3).
•
Section 2254 mandates that district courts
“entertain an application for a writ of
habeas corpus in behalf of a person in
custody pursuant to the judgment of a State
court only on the ground that he is in
custody in violation of the Constitution or
laws or treaties of the United States.”
28
U.S.C. § 2254(a) (emphasis supplied).
•
Section
2244(b),
in
turn,
pertains
to
“application[s]
under
section
2254”
and
provides, “Before a second or successive
application permitted by [section 2254] is
filed in the district court, the applicant
shall move in the appropriate court of
appeals
for
an
order
authorizing
the
district court to consider the application.”
28 U.S.C. §§ 2244(b)(2), (b)(3)(A).
Wright contends that his claims “do[] not arise under [section]
2254,” but rather, “are properly brought under [section] 2241.”
Movant’s Br. 1-2.
Therefore, he contends that his petition is
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not
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subject
to
the
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second-or-successive
authorization
requirement in § 2244(b)(3).
Almost every circuit has addressed some version of the
broader
state
question
prisoners’
at
play
here
petitions
--
that
challenging
is,
the
whether
execution
sentence are to be governed by § 2241 or § 2254.
view
is
that
§
2241
habeas
petitions
from
convicted
of
a
The majority
convicted
state
prisoners challenging the execution of a sentence are governed
by § 2254.
See, e.g., González-Fuentes v. Molina, 607 F.3d 864,
875-76 n.9 (1st Cir. 2010); Greene v. Tenn. Dep’t of Corr., 265
F.3d 369, 371 (6th Cir. 2001); White v. Lambert, 370 F.3d 1002,
1007 (9th Cir. 2004), overruled on other grounds by Hayward v.
Marshall, 603 F.3d 546 (9th Cir. 2010); Cook v. N.Y. State Div.
of Parole, 321 F.3d 274, 278 (2d Cir. 2003); Medberry v. Crosby,
351 F.3d 1049, 1062 (11th Cir. 2003); Coady v. Vaughn, 251 F.3d
480, 485 (3d Cir. 2001); Crouch v. Norris, 251 F.3d 720, 723
(8th Cir. 2001); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.
2000); Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
The
minority view is that such challenges arise under § 2241.
See
Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002).
However, even though the Tenth Circuit has held that
challenges to the execution of a sentence arise under § 2241, it
does not necessarily follow that § 2244(b)(3) is inapplicable to
those challenges.
See Tyree v. Boone, 30 F. App’x 826, 827
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(10th Cir. 2002) (“[Section] 2241 may not be used to evade the
requirements of § 2254.”) (citing Greenawalt v. Stewart, 105
F.3d 1287, 1287 (9th Cir. 1997) (holding that § 2241 could not
be used to circumvent the limitation on second or successive
§ 2254 petitions)).
Indeed,
the
Tenth
Circuit
has
held
that
§
2241
petitions filed by state prisoners are still subject to many of
the same restrictions on § 2254 petitions.
For example, that
court has held that petitions from convicted state prisoners
challenging the execution of their sentences are subject to the
one-year statute of limitations contained in § 2244(d)(1).
Dulworth
v.
Evans,
442
F.3d
1265,
1267-68
(10th
Cir.
See
2006)
(petition challenging the calculation of “misconduct points” and
“escape points” issued by Oklahoma jail officials); see also
Dunn
v.
Workman,
172
F.
App’x
238,
240
(10th
Cir.
2006)
(petition challenging the technical method by which officials
scheduled concurrent sentences).
And it has also recognized
that a state prisoner bringing a § 2241 petition must seek a COA
pursuant to 28 U.S.C. § 2253(c)(1) in order to appeal the denial
of that petition.
See Montez v. McKinna, 208 F.3d 862, 866,
868-69 (10th Cir. 2000).
With
this
backdrop
in
mind,
we
conclude
that,
regardless of how they are styled, federal habeas petitions of
prisoners who are “in custody pursuant to the judgment of a
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State court” should be treated as “applications under section
2254” for purposes of § 2244(b), even if they challenge the
execution of a state sentence. 5
subject
to
the
Therefore, those petitions are
second-or-successive
set forth in § 2244(b)(3).
authorization
requirement
In reaching this decision, we are
persuaded by the plain language of the statutes and the context
and purpose of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”).
1.
Plain Language
“As with any question of statutory interpretation, our
analysis
begins
with
the
plain
language
of
the
statute.”
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).
5
Heretofore, we have sent mixed messages on this issue
without squarely addressing it. In two published decisions, we
entertained petitions from convicted state prisoners challenging
the execution of their sentences under § 2254, but we did not
explain whether doing so was appropriate. See Waddell v. Dep’t
of Corr., 680 F.3d 384, 386 & n.1 (4th Cir. 2012) (exclusion of
good time credits); Wade v. Robinson, 327 F.3d 328, 331 (4th
Cir. 2003) (denial of parole).
We have done the same in
unpublished decisions.
See Royster v. Polk, 299 F. App’x 250,
251 (4th Cir. 2008) (per curiam) (loss of good-time credits); In
re Moody, 105 F. App’x 458, 465 (4th Cir. 2004) (per curiam)
(parole eligibility).
But see Gray v. Lee, 608 F. App’x 172,
173 n.* (4th Cir. 2015) (construing a petition from state
prisoner attacking the execution of his sentence as a § 2241
petition (citing In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.
1997) (discussing federal prisoner)).
With this opinion, we
clear up any confusion on this issue.
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a.
A “commonplace of statutory construction [is] that the
specific governs the general.”
United States ex rel. Oberg v.
Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 138 (4th Cir.
2014) (quoting Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992)); see also Coady, 251 F.3d at 484; Medberry, 351
F.3d at 1060.
not
be
Along these lines, “a general provision should
applied
‘when
doing
so
would
undermine
limitations
created by a more specific provision.’” Coady, 251 F.3d at 484
(quoting Varity v. Howe, 516 U.S. 489, 511 (1996)).
This
between
§
canon
2254
and
is
§
directly
2241.
applicable
Section
to
the
interplay
2241(c)(3)
generally
provides that the “writ of habeas corpus shall not extend to a
prisoner unless . . . [h]e is in custody in violation of the
Constitution or laws or treaties of the United States.”
28
U.S.C. § 2241(c)(3) (emphases supplied).
Section 2254 has more
specific
“shall
language:
a
federal
court
entertain
an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.”
Id. § 2254(a) (emphasis
supplied).
Here, both statutes “authorize [Wright]’s challenge to
the legality of his continued state custody.”
11
Coady, 251 F.3d
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at 484.
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Wright alleges he is a “prisoner . . . in custody in
violation of the Constitution or laws or treaties of the United
States,” 28 U.S.C. § 2241(c)(3), but he is also “a person in
custody
pursuant
§ 2254(a). 6
to
the
judgment
of
a
State
court,”
id.
According to the plain language of the statutes,
then, Wright is technically covered by both provisions.
However,
specific language.
we
must
be
cognizant
of
§
2254’s
more
Section 2254, by its terms, “applies to a
subset of those to whom § 2241(c)(3) applies -- it applies to ‘a
person in custody pursuant to the judgment of a State court’ who
is
‘in
custody
in
violation
of
treaties of the United States.’”
the
Constitution
or
laws
or
Medberry, 351 F.3d at 1059
(quoting 28 U.S.C. § 2254(a)) (emphasis in original).
We find
support for this notion from the Supreme Court. In Felker v.
Turpin, the Court determined, inter alia, that the enactment of
AEDPA did not repeal the Court’s authority to entertain original
6
There is no dispute that Wright is “in custody pursuant to
the judgment of a State court.” See J.A. 182-83 (North Carolina
state court judgments); Wade, 327 F.3d at 331 (rejecting
argument that prisoner was “in custody” pursuant to an order of
the state parole board (rather than a judgment of a state
court), explaining, “Most immediately Wade does find himself, in
common parlance, in custody by virtue of the parole board’s
decision to revoke his parole. But he still is, and remains, in
custody pursuant to his 1994 conviction and sentence.”).
In
addition, Wright alleges he is being held “in violation of the
Constitution or [federal] law”; he claims that the prison’s
treatment of him as an SSA inmate constitutes ex post facto, due
process, and equal protection violations.
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habeas petitions filed pursuant to § 2241 and § 2254 at the
Supreme Court level.
analysis,
the
See 518 U.S. 651, 660-62 (1996).
Court
recognized
that
AEDPA
In its
“impos[ed]
new
requirements for the granting of relief to state prisoners” and
further
noted
that
the
Supreme
Court’s
“authority
to
grant
habeas relief to state prisoners is limited by § 2254, which
specifies the conditions under which such relief may be granted
to ‘a person in custody pursuant to the judgment of a State
court.’”
Id. at 662 (quoting 28 U.S.C. § 2254(a)) (emphasis
supplied).
And that “authority to grant habeas relief” flows
from § 2241.
Id. at 662; see id. at 658.
Wright contends, however, that “Felker’s relevance is
highly
circumscribed”
because
the
Court
“was
never
squarely
presented with the issue presented in this case,” and it “was
chiefly interested in AEDPA’s effect on its own authority” to
entertain
original
habeas
(internal
quotation
marks
petitions.
omitted).
Movant’s
This
may
Rep.
be.
Br.
But
6
the
Court’s recognition of § 2254 as a “limit[ing]” provision that
“specifie[s] the conditions under which” § 2241 habeas relief
may be granted to convicted state prisoners is key here, as “a
specific
statute
general one.”
will
not
be
controlled
or
nullified
by
a
Radzanower v. Touche Ross & Co., 426 U.S. 148,
153 (1976); cf. United States v. Grant, 715 F.3d 552, 558 (4th
Cir. 2013) (“[A] statute [that] limits a thing to be done in a
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particular
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mode[]
includes
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the
negative
of
any
other
mode.”
(quoting Botany Worsted Mills v. United States, 278 U.S. 282,
289 (1929))).
We readily conclude, then, that § 2254 “is more in the
nature of a limitation on authority than a grant of authority.”
Medberry, 351 F.3d at 1059.
Allowing Wright to proceed under
§
§
2241
alone,
and
ignoring
2254,
would
“undermine
[the]
limitations created by” § 2254, Varity, 516 U.S. at 511, and “we
do
not
believe
Congress
intended
to
undermine
[a]
carefully
drawn statute” like section 2254 “through a general [provision]”
like section 2241, Morales, 504 U.S. at 385 (internal quotation
marks omitted); cf. Grant, 715 F.3d at 558 (“We are extremely
skeptical that Congress intended that granting district courts
the general authority to modify probation provisions would allow
courts to bypass the much more specific scheme Congress created
concerning
modification
of
restitution,
essentially
rendering
the scheme a nullity in a wide range of cases.”).
b.
Moreover, in our analysis of the plain language, we
must also “read the words in their context and with a view to
their place in the overall statutory scheme.”
King v. Burwell,
135 S. Ct. 2480, 2489 (2015) (internal quotation marks omitted).
Adopting Wright’s argument would require us to read § 2241 in
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isolation, ignoring its context within Title 28 and its effect
on other AEDPA provisions.
Most
importantly,
it
is
well-settled
that
“courts
should disfavor interpretations of statutes that render language
superfluous.”
(1992).
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253
Reading § 2254 as anything but a limitation on § 2241’s
authority -- in other words, allowing state prisoners to proceed
under
one
statute
or
the
other
--
would
render
“superfluous” and “effectively . . . meaningless.”
351
F.3d
at
1060.
For
example,
if
we
embraced
§
2254
Medberry,
Wright’s
argument, “a state prisoner could simply opt out of [§ 2254’s]
operation by choosing a different label for his petition,” just
as Wright seeks to do in this case.
Id. at 1061; see also
Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (“If § 2254
were not a restriction on § 2241’s authority . . . then § 2254
. . . would be a complete dead letter, because no state prisoner
would choose to run the gauntlet of § 2254 restrictions when he
could avoid those limitations simply by writing ‘§ 2241’ on his
petition . . . .” (quoting Medberry, 351 F.3d at 1060-61)).
Wright attempts to combat this reality by suggesting
that § 2254 would retain relevancy if convicted state prisoners
challenging only the execution of a sentence, rather than the
underlying conviction or sentence, could proceed under § 2241.
See Movant’s Rep. Br. 18.
At first blush, this argument seems
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to
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be
a
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good
one,
as
we
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have
read
§
2254’s
sister
statute
applying to federal prisoners, 28 U.S.C. § 2255, the same way.
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.”).
But upon further examination of the
comparative language of § 2254 and § 2255, this argument loses
steam.
Section 2255(a) only pertains to situations in which a
prisoner “claim[s] the right to be released” on the ground that
“the sentence was imposed in violation of the Constitution or
laws
of
the
supplied).
United
States.”
28
U.S.C.
§
2255(a)
(emphasis
The plain language of § 2255 does not allow for
challenges to the manner in which one’s sentence is executed.
See Fontanez, 807 F.3d at 86 (“As a general matter, a federal
prisoner must challenge the execution of a sentence under 28
U.S.C. § 2241, and the sentence itself under 28 U.S.C. § 2255.”
(emphasis supplied)); see also United States v. Addonizio, 442
U.S. 178, 187 (1979) (explaining that § 2255 is not the proper
vehicle for a federal prisoner challenging a “change in Parole
Commission policies . . . [that] affected the way in which the
court’s judgment and sentence would be performed but . . . did
not affect the lawfulness of the judgment itself -- then or
now”).
The language of § 2254, in contrast, “is considerably
broader.”
Walker, 216 F.3d at 633.
It applies to any petition
filed by a prisoner “in custody pursuant to the judgment of a
16
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State court,” 28 U.S.C. § 2254(a); therefore, “[t]he focus is on
the fact of custody, not necessarily on flaws in the underlying
judgment or sentence.”
Walker, 216 F.3d at 633.
Finally, Wright is concerned that if AEDPA “operated
to restrict an inmate’s access to the writ to seek relief under
§ 2254 only, that would be, in essence, a repeal of § 2241 for
state prisoners.”
Movant’s Br. 25.
broadly than Wright perceives.
for
challenges
by
a
state
But § 2241 sweeps more
Section 2241 is still “available
prisoner
pursuant to a state court judgment.”
who
is
not
in
custody
White, 370 F.3d at 1006.
For example, prisoners “in state custody for some other reason,
such as pre-conviction custody, custody awaiting extradition, or
other forms of custody that are possible without a conviction”
are able to take advantage of § 2241 relief.
Id. (internal
quotation marks omitted); see, e.g., McNeely v. Blanas, 336 F.3d
822, 824 n.1 (9th Cir. 2003) (allowing a pre-trial detainee to
proceed under § 2241).
Moreover, as explained above, Congress merely limited
--
not
repealed
reasonable
--
§
limitations
2241
on
via
§
habeas
exercise of congressional authority.
2254(a).
relief
is
Placing
a
such
permissible
See Tyler v. Cain, 533
U.S. 656, 661 (2001) (recognizing “AEDPA greatly restricts the
power of federal courts to award relief to state prisoners who
file second or successive habeas corpus applications”); In re
17
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Hill,
715
Filed: 06/21/2016
F.3d
284,
295
Pg: 18 of 25
(11th
Cir.
2013)
(“When
it
enacted
AEDPA, Congress sought to bolster or add to the then-existing
limitations on judicial power to grant habeas relief.”); Evans
v. Thompson, 518 F.3d 1, 10 (1st Cir. 2008) (“There is . . .
nothing inherently unconstitutional about Congress restricting
the
scope
of
relief
available
from
lower
federal
collateral review of state criminal convictions.”).
courts
on
Therefore,
Wright’s repeal concerns are of no moment.
2.
Purpose of AEDPA
Our
interpretation
of
the
statutory
consistent with the original purposes” of AEDPA.
language
“is
Triton Marine
Fuels Ltd., S.A. v. M/V PACIFIC CHUKOTKA, 575 F.3d 409, 417 (4th
Cir. 2009).
One
of
the
main
purposes
of
AEDPA
was
“to
permit
delayed or second petitions only in fairly narrow and explicitly
defined circumstances.”
David v. Hall, 318 F.3d 343, 346 (1st
Cir. 2003); see also Bucci v. United States, 809 F.3d 23, 27
(1st Cir. 2015) (The “clear intent of Congress” in passing AEDPA
is “that the pre-clearance process be streamlined.”); Triestman
v. United States, 124 F.3d 361, 378 (2d Cir. 1997) (By enacting
AEDPA, Congress intended “to streamline collateral review and to
discourage repetitive and piecemeal litigation.”).
18
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But
chose
§
to
2241,”
fill
he
Filed: 06/21/2016
Pg: 19 of 25
Wright’s
assertion
out
claims
his
should
reap
on
the
-a
that
form
benefits
simply
labeled
of
§
because
“28
he
U.S.C.
2241’s
broad
construction and subvert AEDPA’s restrictions -- would defeat
this
purpose.
prisoners
to
Such
sidestep
an
interpretation
the
“statutory
would
allow
gatekeeping
state
mechanisms”
present in § 2244 and § 2254, Walker, 216 F.3d at 628, thereby
“thwart[ing]
Congressional
intent”
to
“restrict[]
the
availability of second and successive petitions through Section
2244(b),” Coady, 251 F.3d at 485, 484.
We cannot embrace such
an interpretation.
3.
Conclusion
According to the plain language of the statutes at
issue and the purpose and context of AEDPA, Wright’s petition,
although styled as a § 2241 petition, is governed by § 2254, and
as
such,
2254.”
should
be
treated
as
28 U.S.C. § 2244(b)(2).
an
“application
under
section
Therefore, when a prisoner
being held “pursuant to the judgment of a State court” files a
habeas petition claiming the execution of his sentence is in
violation of the Constitution, laws, or treaties of the United
States, the more specific § 2254 “and all associated statutory
requirements” shall apply, regardless of the statutory label the
prisoner chooses to give his petition.
19
Walker, 216 F.3d at 633
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(citing Felker, 518 U.S. at 662).
Thus, Wright must “move in
the appropriate court of appeals for an order authorizing the
district
court
application.”
to
consider
the
[second
or
successive]
28 U.S.C. § 2244(b)(3)(A).
B.
Should We Grant Authorization?
That brings us to section 2244, which provides, “A
claim
presented
in
a
second
or
successive
habeas
corpus
application under section 2254 that was not presented in a prior
application shall be dismissed,” unless:
(A) the applicant shows that the claim
relies on a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if
proven and viewed in light of the evidence
as a whole, would be sufficient to establish
by clear and convincing evidence that, but
for
constitutional
error,
no
reasonable
factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(A), (B)(i) & (ii) (emphasis supplied).
Wright does not contend that he qualifies for either
of these exceptions.
apply
§
to
2254.
his
His
Instead, he claims § 2244(b)(2) does not
petition
petition,
even
he
if
the
argues,
20
petition
should
is
not
governed
be
by
considered
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“second
or
Filed: 06/21/2016
successive”
at
Pg: 21 of 25
all.
Wright
maintains
that
his
petition is not “second or successive” because the claims in his
proposed
petition
“were
not
previously
brought
in
a
prior
petition”; that is, “he has never filed a petition attacking the
execution
of
his
sentence.”
Movant’s
Br.
31,
33
(emphasis
supplied).
The Supreme Court has held that the phrase “second or
successive” “must be interpreted with respect to the judgment
challenged.”
But
Magwood
Magwood v. Patterson, 561 U.S. 320, 333 (2010).
specifically
declined
to
extend
its
“judgment
challenged” rule to petitions challenging the execution of a
sentence.
See id. at 338 n.12 (“We address only an application
challenging a new state-court judgment for the first time,” not
“habeas petitions challenging the denial of good-time credits or
parole.”).
We
thus
rely
on
pre-AEDPA
abuse-of-the-writ
principles and conclude that Wright’s application is “second or
successive” because it raises claims that could have been raised
in prior petitions.
28 U.S.C. § 2244(b)(2).
1.
Second or Successive
“Although Congress did not define the phrase ‘second
or successive,’ as used to modify ‘habeas corpus application
under section 2254,’ it is well settled that the phrase does not
simply
‘refe[r]
to
all
§
2254
21
applications
filed
second
or
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Filed: 06/21/2016
successively in time.’”
Pg: 22 of 25
Magwood, 561 U.S. at 331-32 (alteration
in original) (citation omitted) (quoting Panetti v. Quarterman,
551 U.S. 930, 944 (2007)); see also Panetti, 551 U.S. at 947
(creating an “exceptio[n]” to § 2244(b) for a second application
raising a claim that would have been unripe had the petitioner
presented it in his first application); Stewart v. Martinez–
Villareal,
523
U.S.
637,
643
(1998)
(treating
a
second
application as part of a first application where it was premised
on a newly ripened claim that had been dismissed from the first
application “as premature”); Slack v. McDaniel, 529 U.S. 473,
478 (2000) (declining to apply § 2244(b) to a second application
where the district court dismissed the first application for
lack of exhaustion).
Interpreting the phrase “second or successive” in the
context at hand requires us to apply pre-AEDPA abuse-of-the-writ
principles.
See Crouch, 251 F.3d at 723 (collecting cases); see
also Stewart, 523 U.S. at 643-45 (looking to pre-AEDPA law to
determine whether claims were barred by § 2244(b)); Panetti, 551
U.S.
at
943-44
(explaining
that
the
phrase
“second
or
successive” is not “self-defining” and “takes its full meaning
from [the Court’s] case law, including decisions predating the
enactment of [AEDPA]”).
The Supreme Court has held that new
claims raised in subsequent habeas petitions were “abusive” if
those claims were available to the petitioner at the time of a
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prior petition’s filing.
Pg: 23 of 25
See, e.g., McCleskey v. Zant, 499 U.S.
467, 489 (1991) (“Our recent decisions confirm that a petitioner
can abuse the writ by raising a claim in a subsequent petition
that he could have raised in his first, regardless of whether
the
failure
to
raise
it
earlier
stemmed
from
a
deliberate
choice.”) This principle “is not confined to instances where
litigants
deliberately
abandon
claims;
it
also
applies
to
instances where litigants, through inexcusable neglect, fail to
raise available claims.”
Noble v. Barnett, 24 F.3d 582, 585
(4th Cir. 1994) (citing McCleskey, 499 U.S. at 489-90).
The claims raised in Wright’s proposed petition were
clearly available to him before he filed prior applications.
His first three claims are based on the argument that he should
be treated as a Fair Sentencing Act (“FSA”) inmate, rather than
a
Structured
credit,
Sentencing
parole
Act
(“SSA”)
determination,
and
inmate,
for
honor-grade
purposes
of
classification.
But the SSA became effective October 1, 1994, two years before
Wright
was
sentenced
in
1996.
See
State
v.
Whitehead,
722
S.E.2d 492, 494 (N.C. 2012) (“The General Assembly enacted the
[SSA] to supersede the FSA for offenses committed on or after
the SSA’s effective date, 1 October 1994.” (emphasis omitted));
cf.
Wade
v.
Robinson,
327
F.3d
328,
333
(4th
Cir.
2003)
(determining, for statute of limitations purposes, “the date on
which the factual predicate of [petitioner’s] claim could have
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been discovered through the exercise of due diligence” was the
date petitioner “could have discovered” the factual predicate
“through public sources”).
Therefore, Wright has been able to
raise his FSA-related claims for the entirety of his term of
incarceration.
As
to
his
claim
that
his
parole
should
have
been
reviewed more frequently, Wright was informed on May 20, 2009,
that
his
next
following
year.
5/20/09”:
“Your
review
would
See
case
J.A.
is
occur
25
in
2012,
(parole
scheduled
to
be
purposes again on or about 5/18/2012.”).
instead
of
determination
reviewed
for
the
dated
parole
Thus, his challenge to
this prolonged review period could have been raised in his March
2012 or February 2013 petitions.
To the extent Wright argues
that his last parole denial was in 2015, and “he could not have
raised any claims arising out of the denial of parole in a past
petition,” Movant’s Rep. Br. 28, Wright’s proposed petition does
not specifically challenge the 2015 parole determination, aside
from the fact that it inevitably occurred as part of a threeyear review pattern.
Thus, he “knew of all the facts necessary
to raise his parole claim before he filed his [prior] federal
petition.”
Benchoff v. Colleran, 404 F.3d 812, 818 (3d Cir.
2005) (internal
quotation
marks
omitted)
(alteration
omitted)
(deeming petition challenging parole denials to be “second or
24
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successive,”
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even
though
Pg: 25 of 25
third
parole
denial
occurred
after
filing of previous habeas application).
Therefore,
principles,
Wright’s
based
on
proposed
pre-AEDPA
petition
is
abuse-of-the-writ
deemed
“second
or
successive.”
2.
Requirements of § 2244(b)(2)
Wright has not shown that his claims rely “on a new
rule of constitutional law,” or that the “factual predicate for
[his] claim[s] could not have been discovered previously through
the
exercise
(B)(i).
of
due
diligence.”
28
U.S.C.
§
2244(b)(2)(A),
Indeed, he has not even attempted to do so.
As a
result, he does not meet the requirements for authorization to
file a second or successive application.
III.
Wright was required to move for authorization to file
a
second
petition
or
is
successive
second
or
application
successive,
criteria for authorization.
for
and
habeas
he
does
relief.
His
not
the
meet
Therefore, his motion is denied.
MOTION DENIED
25
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