Rivenbark v. Commonwealth of Virginia , 305 F. App'x 144 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1395
DOUGLAS ALLEN RIVENBARK,
Petitioner – Appellant,
v.
COMMONWEALTH OF VIRGINIA; ROBERT F. MCDONALD, Esquire,
Attorney General,
Respondents – Appellees.
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)
Submitted: November 18, 2008 Decided: December 30, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Douglas Allen Rivenbark, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
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
*
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 (2003). See United
States v. Blackstock, 513 F.3d 128, 132-35 (4th Cir. 2008).
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before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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