United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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).
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
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.
February 9, 2016, Gray filed a pro se 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.
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.
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.
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.
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.
Motions for Leave to File Excess Pages and to File a
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