In re: TERRENCE LEROY WRIGHT, a/k/a Terrence Wright El, Movant.
Argued: May 12, 2016
Motion for Authorization to File a Second or Successive
Christopher Ryan Ford, MAYER BROWN LLP, Washington, D.C., for
Movant. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Respondent.
Cooper, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
KEENAN, FLOYD, and THACKER, Circuit Judges.
THACKER, Circuit Judge:
Carolina state prisoner Terrence Leroy Wright moves this
court for authorization to file a second or successive
application for habeas corpus relief. See 28 U.S.C.
§ 2244(b)(3). His proposed application is styled as a
"28 U.S.C. § 2241" petition and challenges the
execution of his sentence, rather than the validity of his
underlying conviction and sentence.
opening brief, Wright asks us to deny his motion as
unnecessary. He claims that his proposed application properly
arises under § 2241, not § 2254, and therefore, he
is not required to seek authorization to file a second or
successive application. In any event, Wright submits that if
he is required to seek authorization, his claims are not
"second or successive." We disagree on both counts
and deny the motion.
and Procedural Background
was convicted in North Carolina Superior Court of
first-degree burglary and second-degree murder. On April 11,
1996, he was sentenced to 30 years of imprisonment for the
burglary conviction. On February 4, 1997, he was sentenced to
a term of life imprisonment for the murder
conviction. After an unsuccessful direct
appeal in North Carolina, in December 1998, Wright was sent
to South Carolina to face separate state criminal charges. In
March 1999, he was convicted of murder, burglary, criminal
sexual conduct, and grand larceny in Charleston County, South
Carolina. Wright returned to North Carolina to serve his
sentences for the crimes he committed there, and South
Carolina placed a detainer on him.
Wright exhausted his state post-conviction remedies, he filed
his first federal habeas petition pursuant to § 2254 in
August 2007, raising 16 claims varying from alleged double
jeopardy violations to improper conduct by the trial judge.
The district court dismissed the petition as untimely.
See Wright-Bey v. N. Carolina, No. 2:07-cv-17, 2007
WL 2583400, at *1 (W.D. N.C. Sept. 7, 2007). Wright appealed,
but we denied a certificate of appealability
("COA") and dismissed the appeal. See
Wright-Bey v. N. Carolina, 268 F.App'x 266 (4th Cir.
March 21, 2012, Wright filed another federal habeas §
2254 petition, claiming, inter alia, that North Carolina
lacked jurisdiction over him because he is a Moorish-American
National. The district court dismissed the petition as
frivolous on August 21, 2012. See Wright-El v.
Jackson, No. 2:12-cv-6, 2012 WL 3614452, at *2 (W.D.
N.C. Aug. 21, 2012). And again, we dismissed his appeal and
declined to issue a COA. See Wright v. Jackson, 502
F.App'x 339 (4th Cir. 2013).
filed yet another federal habeas petition on February 14,
2013, this time styled as a "28 U.S.C. § 2241"
petition, wherein he asked the court to release his
obligations under an "appearance bond." J.A.
149. The district court dismissed the
petition for failure to obtain authorization to file a second
or successive application from this court. See Wright v.
Graham Cnty. Clerk of Court, No. 2:13-cv-9 (W.D. N.C.
March 25, 2013), ECF No. 3.
on September 2, 2015, Wright filed the instant motion. He
attached a proposed application setting forth the following
(1) Wright contends he was sentenced under North
Carolina's Fair Sentencing Act ("FSA"), not the
Structured Sentencing Act ("SSA") in effect at the
time of his sentencing. But he claims he is nonetheless being
treated as an SSA inmate, and thus, "prison and parole
authorities" have not been calculating his "gain
time, " "merit time, " and "good
time" correctly, and he is entitled to 34 1/2 years of
credit. J.A. 11-12.
(2) Wright "was told [he] can't go to honor
grade" status, and therefore become eligible for parole,
"because of the [South Carolina] detainer." J.A.
13. But Wright claims he cannot challenge his detainer until
he is released on parole. In sum, Wright believes he should
be treated as an FSA inmate, rather than an SSA inmate,
because FSA inmates "were able to be paroled to wherever
a detainer was pending . . . ." Id. at 14.
(3) By applying the SSA to his term of imprisonment, rather
than the FSA, the "prison system" has committed an
"ex post facto" violation. J.A. 15.
(4) The FSA requires that Petitioner's parole status be
reviewed every year, but it is currently being reviewed every
three years. He claims this treatment violates his due
process and equal protection rights under the
Therefore, Wright 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 sentence. We have typically
found such challenges to be contesting the
"execution" of a sentence. See, e.g.,
Fontanez v. O'Brien, 807 F.3d 84, 87 (4th Cir.
2015) (finding a petitioner to be challenging the
"execution of [his] sentence" where he "d[id]
not seek to have [the original sentencing] order set
aside"); United States v. Miller, 871 F.2d 488,
490 (4th Cir. 1989) (per curiam) (finding that a "claim
for credit against a sentence" challenges the
"execution of the sentence rather than the sentence
properly rule on Wright'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 set forth
in Title 28 of the United States Code: § 2241, §
2254, and § 2244.
Wright Required to Seek Authorization to File a Second or