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finding that the district court should have construed the petitioner's "Petition for Writ of Mandamus" as a § 2254 petition and provided him with the proper notice and opportunity to respond
Summary of this case from Robbins v. Parole Bd.Opinion
No. 08-1395.
Submitted: November 18, 2008.
Decided: December 30, 2008.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cv-00676-HEH).
Douglas Allen Rivenbark, Appellant Pro Se.
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Douglas Allen Rivenbark appeals the district court's order dismissing his self-styled "Petition for Writ of Mandamus," which the district court construed as a mandamus petition under 28 U.S.C. § 1651 (2000). After conducting its 28 U.S.C. §§ 1915(e)(2) and 1915(A) screening, the district court recognized that Rivenbark sought a writ of mandamus directing the Commonwealth of Virginia "to order his release from incarceration and vacate his state convictions," but found that it lacked jurisdiction to grant mandamus relief against state officials and dismissed Rivenbark's petition.
Given the nature of the relief sought by Rivenbark, we find that the district court should have construed Rivenbark's petition as a 28 U.S.C. § 2254 (2000) petition. Accordingly, we grant Rivenbark's application to proceed in forma pauperis and vacate and remand the district court's order for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
We note that before characterizing Rivenbark's filing as a § 2254 petition, the district court must provide Rivenbark with the proper notice and an opportunity to respond as required by Castro v. United States, 540 U.S. 375, 377, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). See United States v. Blackstock, 513 F.3d 128, 132-35 (4th Cir. 2008).
VACATED AND REMANDED.