In re Wright

826 F.3d 774

In re: Terrence Leroy Wright, a/k/a Terrence Wright El, Movant.

No. 15–281

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2016

Decided: June 21, 2016

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.

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.

THACKER, Circuit Judge:

North Carolina state prisoner Terrence Leroy Wright moves this court for authorization to file a second or successive application for habeas corpus relief. See 28 U.S.C. § 2244(b)(3). His proposed application is styled as a “28 U.S.C. § 2241 ” petition and challenges the execution of his sentence, rather than the validity of his underlying conviction and sentence.

In his opening brief, Wright asks us to deny his motion as unnecessary. He claims that his proposed application properly arises under § 2241, not § 2254, and therefore, he is not required to seek authorization to file a second or successive application. 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. On April 11, 1996, he was sentenced to 30 years of imprisonment for the burglary conviction. On February 4, 1997, he was sentenced to a term of life imprisonment for the murder conviction.¹ After an unsuccessful direct appeal in North Carolina, in December 1998, Wright was sent to South Carolina to face separate state criminal charges. In March 1999, he was convicted of murder, burglary, criminal sexual conduct, and grand larceny in Charleston County, South Carolina. Wright returned to North Carolina to serve his sentences 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 jeopardy violations to improper conduct by the trial judge. 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 Fed.Appx. 266 (4th Cir. 2008).

On March 21, 2012, Wright filed another federal habeas § 2254 petition, claiming, inter alia, that North Carolina lacked jurisdiction over him because he is a Moorish–American National. The district court dismissed the petition as frivolous on August 21, 2012. 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 Fed.Appx. 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, on September 2, 2015, Wright filed the instant motion. He attached a proposed application setting forth the following allegations:

(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 ½ 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

Therefore, Wright does not challenge the underlying state convictions that landed him in jail in the first place. Rather, he challenges only administrative rules, decisions, and procedures applied to his sentence. 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 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 not subject to the second-or-successive authorization requirement in § 2244(b)(3).

Almost every circuit has addressed some version of the broader question at play here—that is, whether convicted state prisoners' petitions challenging the execution of a sentence are to be governed by § 2241 or § 2254. The majority view is that § 2241 habeas petitions from 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 Fed.Appx. 826, 827 (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). See Dulworth v. Evans , 442 F.3d 1265, 1267–68 (10th Cir. 2006) (petition challenging the calculation of “misconduct points” and “escape points” issued by Oklahoma jail officials); see also Dunn v. Workman , 172 Fed.Appx. 238, 240 (10th Cir. 2006) (petition challenging the technical method by which officials scheduled concurrent sentences). And it has also...