United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon a motion seeking
reconsideration (Doc. No. 7) of the Court's dismissal of
Petitioner's pro se Petition for Writ of Habeas Corpus,
28 U.S.C. § 2254.
is a prisoner of the State of North Carolina, who, on June
13, 2012, was convicted after a second jury trial in
Cleveland County Superior Court of possession with intent to
sell or deliver cocaine, sale of cocaine, and attaining
habitual felon status. State v. Wray, 747 S.E.2d 133
( N.C. Ct. App. 2013). On November 25, 2013, Petitioner filed
a pro se petition in this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 2012
judgments. Pet., Wray v. North Carolina, No.
1:13-cv-00310-FDW (W.D. N.C. ), Doc. No. 1. On March 11,
2014, the Court granted the respondent summary judgment and
dismissed the petition, concluding that Petitioner's
claims were factually inaccurate and procedurally barred.
Order, id. at Doc. No. 15.
did not appeal the Court's dismissal of his habeas
petition. Instead, he has papered the federal courts with
unauthorized, successive habeas petitions making the same
arguments and allegations that he did in his first habeas
petition. See Wray v. Hooks, No. 1:17- cv-00147-FDW
(W.D. N.C. dismissed July 25, 2017); Wray v. Hooks,
1:17-cv-00526-CCE-JLW (M.D. N.C. dismissed July 17, 2017);
Wray v. Hooks, No. 1:17-cv-00301-CCE-JLW (M.D. N.C.
dismissed May 15, 2017); Wray v. Perry, No.
1:16-cv-00075-FDW (W.D. N.C. dismissed Sept. 9, 2016);
Wray v. Perry, No. 1:16-cv-00055-FDW (W.D. N.C.
dismissed Aug. 8, 2016); Wray v. State of North Carolina
County of Cleveland, No. 1:15cv0049-FDW (W.D. N.C.
dismissed Mar. 24, 2015). To this Court's knowledge,
Petitioner has never sought authorization from the Fourth
Circuit Court of Appeals to file a successive habeas petition
challenging his June 2012 judgment. See 28 U.S.C.
filed this latest habeas action on June 21, 2017, raising the
same claims that have appeared in all of his other habeas
petitions. (Doc. No. 1.) The Court dismissed the Petition on
July 25, 2017, explaining, yet again, that the Court does not
have jurisdiction (i.e. the power or the authority) to
consider the merits of the Petition because Petitioner has
not been authorized by the Fourth Circuit Court of Appeals to
file a successive habeas petition, as required under 28
U.S.C. § 2244(b)(3)(A). (Order 6-7, Doc. No. 5.)
Petitioner, a demonstrably slow learner, has filed the
instant Motion seeking reconsideration of the Court's
Order. (Doc. No. 7.)
Federal Rules of Civil Procedure permit a court to correct
orders and provide relief from judgment under certain
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence . . .; (3) fraud[, ] . . .
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief.
Civ. P. 60(b). None of those circumstances apply here.
than contest the Court's holding that the Petition is an
unauthorized, successive habeas petition, Petitioner again
argues the merits of his claims. Where a habeas petitioner
seeks relief from a judgment under Rule 60(b) on grounds
other than a clerical mistake, courts must treat such a
motion as seeking successive post-conviction relief when
failing to do so would allow the applicant to evade the bar
against relitigation of claims presented in a prior
application. See United States v. Winestock, 340
F.3d 200, 206 (4th Cir. 2003). As a general matter, “a
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive application,
while a motion seeking a remedy for some defect in the
collateral review process will generally be deemed a proper
motion to reconsider.” Id. at 207; see
also Gonzalez v. Crosby, 545 U.S. 524, 531-33 (2005)
(concluding that a Rule 60(b) motion for relief from judgment
that directly challenges the underlying conviction
constitutes a successive § 2254 petition).
Petitioner's motion to reconsider attacks only the
validity of his convictions and not the Court's
conclusion that the Petition is an unauthorized, successive
habeas petition, the motion itself is tantamount to an
unauthorized, successive habeas petition. See
Winestock, 340 F.3d at 206, 207. Consequently, it must
be dismissed. See id. at 205 (“In the absence
of pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or
repetitive claims.”) (citation omitted).
IS, THEREFORE, ORDERED that:
1. Petitioner's Motion for Reconsideration (Doc. No. 7)
is DISMISSED as an unauthorized, successive
petition under 28 U.S.C. § 2244(b)(3)(A); and
2. Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the Court
declines to issue a certificate of appealability as
Petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003)
(in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural
grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is
debatable, and that the petition states a debatably valid
claim of the denial of a constitutional right).