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Gray v. Hooks

United States District Court, E.D. North Carolina, Western Division

February 20, 2018

Williams Robert Gray, Jr., Petitioner,
v.
Erik A. Hooks, Respondent.

          ORDER & MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.

         On March 13, 2017, Petitioner William Robert Gray, Jr., a state inmate proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. D.E. 1. This matter is before the court upon Respondent Erik A. Hooks's motion to dismiss. D.E. 13. Also before the court are Hooks's motions for leave to file excess pages (D.E. 14) and for leave to supplement his motion to dismiss (D.E. 23). For the following reasons, the court grants Hooks's motions for leave and the undersigned recommends that the court deny his motion to dismiss. Finally, the court directs Gray to file any claims relating to his parole or custody classification as a separate action. The Clerk shall provide Gray with the proper form for filing a § 1983 action.

         I. Background

         On November 1, 1993, a North Carolina jury found Gray guilty of first degree murder. Pet. at 1, D.E. 4. A judge later sentenced him to death. Id. After the North Carolina courts rejected his direct appeal and denied his request for post-conviction relief, Gray filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in United States District Court for the Eastern District of North Carolina, asserting several ineffective assistance of counsel claims. See Gray v. Lee, Case No. 5:02-HC-00335-BO (E.D. N.C. filed May 20, 2002) (“Gray I”). The court dismissed Gray's petition. Gray I, D.E. 47.

         Gray appealed, and the United States Court of Appeals for the Fourth Circuit affirmed in part and reversed and remanded in part. Gray v. Branker, 529 F.3d 220 (4th Cir. 2008). The Fourth Circuit found that Gray's trial counsel “rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that Gray suffered from a severe mental illness, and it is reasonably probable that this failure prejudiced the outcome at sentencing.” Id. at 223. The Fourth Circuit thus remanded the matter, instructing the district court to “grant the writ of habeas corpus unless the State of North Carolina affords Gray a new sentencing hearing within a reasonable time.” Id. at 242.

         In August 2008, the district court ordered that the State of North Carolina must begin the resentencing process within 180 days or it would be required to sentence him to life in prison. Gray I, D.E. 74. But by 2013, the North Carolina still had not resentenced Gray.

         In response to the delay, Gray filed several pro se motions asking for his release on various constitutional grounds. See, e.g., Gray I, D.E. 76, 79. The court at first denied these motions because of its mistaken belief that Gray had already been resentenced to life in prison. Id., D.E. 81. Gray moved for reconsideration. Id., D.E. 82. In August 2014, the district court determined that the delay was reasonable, partially because Gray's trial counsel had negotiated with the state several postponements during this five-year period for Gray's benefit. Id. at D.E. 98. Despite the reasonableness of the delay, the district court ordered the State of North Carolina to regularly file status reports regarding Gray's resentencing proceedings. Id.

         Gray appealed the disposition of his 2013 motions. Id., D.E. 99. While his appeal was pending, Gray also filed two pro se motions for reconsideration in the Eastern District, which the court denied. Id., D.E. 100, 101, 104. In July 2015, the Fourth Circuit affirmed the disposition of Gray's 2013 motions. Gray v. Lee, 608 Fed.Appx. 172, 173 (4th Cir. 2015).

         Gray also advanced a claim of actual innocence under McQuiggin v. Perkins, 569 U.S. 383 (2013), in connection with his appeal of the 2013 Motions. As for Gray's actual innocence claim, the Fourth Circuit held:

This actual innocence claim really goes to the validity of Gray's underlying conviction. 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.

Id.

         On June 11, 2015, while his appeal was pending at the Fourth Circuit, North Carolina resentenced Gray to life imprisonment. Gray I, D.E. 114. Gray did not appeal the new judgment or seek any state post-conviction relief.

         On February 9, 2016, Gray filed a pro se[1] motion seeking authorization to file a second or successive § 2254 petition with the Fourth Circuit. In re Gray, Case No. 16-433, D.E. 2-1 (4th Cir. 2016). Shortly thereafter, Gray submitted to the Fourth Circuit the § 2254 petition he intended to file in the district court if the appellate court authorized him to do so. Id., D.E. 8-1.

         Ultimately, on February 28, 2017, the Fourth Circuit found that Gray's proposed petition was not a second or successive petition for purposes of § 2244. In re Gray, 850 F.3d 139, 141-43 (4th Cir. 2017). The Court of Appeals explained, “when a prisoner's successful habeas petition results in a new, intervening judgment, the prisoner's first habeas petition to challenge that new judgment is not second or successive within the meaning of § 2244(b), regardless of whether the petition challenges the prisoner's sentence or underlying conviction.” Id. Based on this reasoning, the Fourth Circuit directed “the district court to consider Gray's second-in-time § 2254 petition as the first challenge to the new judgment.” Id. at 141.

         Gray, again proceeding pro se, filed the instant petition (“Gray II”) in this court on March 13, 2017 (D.E. 1-1). The originally filed petition was identical to the proposed petition he submitted to the Fourth Circuit in connection with his motion for authorization. Pet., D.E. 1. Because his original petition was not on the forms authorized by this court for § 2254 motions, the court directed Gray to amend his petition, which he did. D.E. 3, 4.

         In his amended petition, Gray alleges: (1) that he has obtained new forensic evidence supporting his innocence; and (2) racial discrimination by the prosecutor during jury selection, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Am. Pet. at 5-7, D.E. 4. Gray also attached many documents relating to proceedings before the North Carolina Parole Commission (“Commission”) as exhibits to his amended petition. Pet'r Ex., D.E. 4-1. These exhibits also discuss Gray's custody classification. Id. at 10-15. But Gray does not refer to these exhibits on the face of his amended petition and his amended petition does not otherwise suggest that he seeks to challenge the Commission's determination or his custody classification. Gray's habeas claims survived initial review. D.E. 8.

         Hooks responded to the petition by filing a motion to dismiss that argued that Gray's claims are time-barred. D.E. 13. Gray filed a timely response. D.E. 22. In addition to addressing the motion to dismiss, Gray also stated, “I have not been notified that you have filed the Parole Commission lawsuit.” D.E. 22-1. Thus, Gray now apparently seeks to challenge his parole proceedings and custody classification. After Gray filed this response, Hooks sought leave to supplement his motion to dismiss to address these new claims. D.E. 23. Hooks attached his proposed supplemental argument to that request. D.E. 24.

         II. Discussion

         A. Motions for Leave to File Excess Pages and to File a Supplement

         Hooks asks permission to file a memorandum in support of his motion to dismiss that exceeds the page limitation set forth in the local rules and to supplement his motion to dismiss to address new arguments raised by Gray in his response. The court grants these requests. The court has considered all materials submitted by the parties in resolving the motion to dismiss.

         B. ...


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