                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-7230


WILLIAM ROBERT GRAY, JR.,

                Petitioner - Appellant,

          v.

R.C. LEE, Warden of Central Prison, Raleigh, North Carolina,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:02-hc-00335-BO)


Submitted:   June 19, 2015                 Decided:   July 31, 2015


Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.    Danielle Marquis Elder,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      William      Robert    Gray,        Jr.    was       convicted    of    first       degree

murder and sentenced to death in North Carolina state court.

See Gray v. Banker, 529 F.3d 220, 223 (4th Cir. 2008).                                          He

successfully appealed the U.S. district court’s denial of his

petition for the writ of habeas corpus.                            We remanded the case

with instructions to the district court to grant the writ unless

the   state      afforded     him     a    new       sentencing        hearing      within      a

reasonable       time.      See   id.      at       242.     On    August     7,    2008,      the

district       court   entered      an    order       that    released       Gray       from   his

death sentence and imposed a sentence of life imprisonment if

the state did not initiate new sentencing proceedings within 180

days.     See J.A. 181.

      Nearly       five      years         later,           remarkably,        resentencing

proceedings had not taken place.                       In 2013, Gray filed several

pro se motions, including what is best construed as a motion

under     28    U.S.C.    § 2241         asking      for     his    release        on    various

constitutional         grounds. ∗          Mistakenly         believing        that       Gray’s


      ∗It is our “longstanding practice . . . to classify pro se
pleadings from prisoners according to their contents, without
regard to their captions.” United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003).    Gray’s filings principally attacked
the five-year long delay in the state’s failure to resentence
him; in other words, the execution of his sentence.    See In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“[A]ttacks on the
execution of a sentence are properly raised in a § 2241
petition.”).


                                                2
resentencing hearing had already occurred, the district court

denied     his     motion      as   moot.      Gray    moved    for   reconsideration.

Subsequently, the district court determined the delay in Gray’s

resentencing           proceedings       was    reasonable,      because      his    trial

counsel      had       negotiated     with     the    state    several   postponements

during this five-year period to his benefit.

      Now     represented           by    counsel     from     his    original      habeas

proceeding, Gray appeals the district court’s order denying his

motion for reconsideration.                 A timely appeal of an order denying

a   motion       for    reconsideration        automatically         brings   both    that

order and the underlying order before the appeals court.                               See

Dove v. CODESCO, 569 F.2d 807, 809-10 (4th Cir. 1978).                              To the

extent Gray’s appeal requires a certificate of appealability,

see United States v. McRae, No. 13-6878,                         2015 WL 4190665, at

*5-6 (4th Cir. July 13, 2015), we have independently reviewed

the record and conclude he has not made the requisite showing.

See 28 U.S.C. § 2253(c)(2) (requiring “a substantial showing of

the denial of a constitutional right”).                       We therefore hold that

the district court’s denial of Gray’s motion for reconsideration

is affirmed.

      We     note       that   in   his     briefing,     Gray    advances     a    second

argument unrelated to his resentencing predicated on McQuiggin

v. Perkins, 133 S. Ct. 1924 (2013).                    This actual innocence claim

really goes to the validity of Gray’s underlying conviction.

                                               3
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.           The opinion of

the district court is

                                                                 AFFIRMED.




                                     4
