Ezekiel Freeman, Petitioner-appellant, v. William Barker, Superintendent; Attorney General of Thestate of North Carolina, Respondentappellee, 818 F.2d 861 (4th Cir. 1987)

Ezekiel Freeman, a North Carolina inmate, brought this petition pursuant to 28 U.S.C. § 2254 alleging that he is being held under an illegal sentence. The district court sua sponte dismissed the petition as frivolous under 28 U.S.C. § 1915(d). We conclude that the district court's sua sponte dismissal was inappropriate, and we remand the case to the district court for further proceedings.

In Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979), we established the test in this Circuit to determine the propriety of dismissal under Sec. 1915(d). We stated that a pro se complaint should not be dismissed on the basis of frivolity unless the district court finds " 'beyond doubt' and under any 'arguable' construction, 'both in law and in fact' of the substance of the plaintiff's claim that he would not be entitled to relief." Boyce, supra at 952. We believe that Freeman's petition survives this test.

The thrust of Freeman's petition seems to be that he is being held under a sentence that was vacated nineteen years ago, and that this is affecting his release date. We believe that Freeman presents sufficient facts to call for further inquiry. The district court should either allow Freeman to particularize his claim, or require an answer. See Johnson v. Silvers, 742 F.2d 823, 825 n.2 (4th Cir. 1984) (citing Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965), cert. denied, 385 U.S. 905 (1966), and Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).

We grant a certificate of probable cause to appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively. The judgment of the district court is vacated, and the case is remanded for further proceedings.

VACATED AND REMANDED.