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.
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.