William Robert Gray, Jr. v. R.C. LEE, Warden of Central Prison, Raleigh, North Carolina

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 afforded him a new sentencing hearing within a
reasonable time. See id. at 242. On August 7, 2008, the
district court entered an order that released 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, remarkably, resentencing
proceedings had not taken place. In 2013, Gray filed several
pro se motions, including what is best construed as a motion
under 28 U.S.C. § 2241 asking for his release on various
constitutional grounds.∗ Mistakenly believing that 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 was reasonable, because his trial
counsel had negotiated with the state several 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 timely appeal of an order denying
a motion for 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 on this basis until the state
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
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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