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No Successive Petition for State-Sentencing Claims

A North Carolina prisoner’s motion under 28 U.S.C. § 2244(b)(3) seeking authoriza­tion to file a second or successive 28 U.S.C. § 2241 petition challenging the execution of his state sentence is denied; the 4th Circuit says the § 2241 petition will be treated as a petition under 28 U.S.C. § 2254 and peti­tioner has not demonstrated any grounds to authorize a successive petition raising sen­tence-related claims he could have raised in earlier petitions.

Petitioner 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 sentences. We have typ­ically found such challenges to be contesting the “execution” of a sentence.

To properly rule on petitioner’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: 28 U.S.C. §§ 2241, 2254 and § 2244.

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. However, even though the 10th 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. Indeed, the 10th Circuit has held that § 2241 petitions filed by state prisoners are still subject to many of the same restrictions on § 2254 petitions. It has also been recognized that a state pris­oner bringing a § 2241 petition must seek a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) in order to appeal the de­nial of that petition.

Treatment of petitions

We conclude that, regardless of how they are styled, federal habeas petitions of pris­oners who are in custody pursuant to a state court judgment should be treated as applications under § 2254 for purposes of § 2244(b), even if they challenge the execution of a state sentence. Therefore, those peti­tions are subject to the second-or-successive authorization requirement of § 2244(b)(3). In reaching this decision, we are persuaded by the plain language and the context and purpose of the Antiterrorism and Effective Death Penalty Act.

According to the plain language of the statutes at issue and the purpose and con­text of AEDPA, this petition, although styled as a § 2241 petition, is governed by § 2254, and as such, should be treated as an appli­cation under § 2254. Therefore, when a pris­oner being held pursuant to a state court judgment files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws or treaties of the U.S., the more specific § 2254 and all associated statutory requirements shall apply, regard­less of the statutory label the prisoner gives the petition.

Here, petitioner contends § 2244(b)(2) does not apply to his petition even if the pe­tition is governed by § 2254, and his petition should not be regarded as second or succes­sive at all. We rely on pre-AEDPA abuse-of-the-writ principles and conclude that peti­tioner’s application is “second or successive” because it raises Fair-Sentencing-Act and parole claims that could have been raised in prior petitions.

Petitioner’s petition is second or succes­sive and he does not meet the criteria for authorization by this court.

Motion denied.

In re: Terrence L. Wright (Thacker) No. 15- 281, June 21, 2016; On Motion for Authoriza­tion; Christopher R. Ford for movant; Jess D. Mekeel, NCDOJ, for respondent. VLW 016-2-106, 25 pp.

VLW 016-2-106

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