Douglas Rivenbark v. Commonwealth of Virginia, No. 08-1395 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1395 DOUGLAS ALLEN RIVENBARK, Petitioner Appellant, v. COMMONWEALTH OF VIRGINIA; Attorney General, ROBERT F. MCDONALD, Esquire, 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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Mandamus, which his the self-styled district court Petition for construed as petition under 28 U.S.C. § 1651 (2000). 28 U.S.C. court §§ 1915(e)(2) recognized that and 1915(A) Rivenbark a of mandamus After conducting its screening, sought Writ a writ the district 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 proceedings. remand the district court s order for further 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). 2 before the court and argument would not aid the decisional process. VACATED AND REMANDED 3
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