Derek Curtis v. Chesterfield County, No. 12-7958 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7958 DEREK CURTIS, Petitioner - Appellant, v. CHESTERFIELD COUNTY COMMONWEALTH OF VIRGINIA, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:12-cv-00827-CMH-TRJ) Submitted: February 26, 2013 Decided: March 5, 2013 Before MOTZ, WYNN, and FLOYD, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Derek Curtis, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derek order Curtis dismissing impermissibly his seeks 28 to appeal U.S.C. successive. We § the 2254 grant district (2006) Curtis court s as certificate a petition of appealability, vacate the judgment of the district court, and remand for further proceedings. A district court s order denying relief on a § 2254 petition is not appealable unless a circuit justice or judge issues a certificate of § 2253(c)(1)(A) (2006). issue absent a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. See showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a When, as here, the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Our district review court s of the procedural record ruling convinces was us incorrect. that the Although Curtis petitions are nearly identical to each other, a close reading of Curtis first § 2254 petition reveals that it challenged only the grand larceny conviction that was entered against him in the Virginia Circuit 2 Court for the City of Petersburg. By contrast, the § 2254 petition underlying Curtis present appeal challenged only the grand larceny conviction that was entered against him in the Virginia Circuit Court for Chesterfield County. Even though both of Curtis convictions stemmed from the same underlying facts and present identical claims, Curtis present § 2254 petition is not successive: [T]o be considered successive, a prisoner s second petition must, in a broad sense, represent a second attack by federal habeas petition on the same conviction. Cir. 2003). Vasquez v. Parrott, 318 F.3d 387, 390 (2d Indeed, Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts indicates that [a] petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. See Hardemon v. Quarterman, Rule 2(e), 28 U.S.C. foll. § 2254. 516 F.3d 272, 275-76 (5th Cir. 2008). We likewise conclude that, on the sparse record before the district court, Curtis petition stated a valid claim of the denial of a constitutional right, Roberts v. Dretke, 356 F.3d 632, 637 (5th Cir. 2004), such that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. 3 Slack, 529 U.S. at 484 (internal quotation marks omitted). And in our view, Curtis petition at least stated a constitutional claim, such that its sua sponte dismissal by the district court was premature. See Rule 4, 28 U.S.C. foll. § 2254 (providing for sua dismissal sponte appears from the on preliminary petition and any review [i]f attached it plainly exhibits that petitioner is not entitled to relief). By this disposition, we indicate no view as to the ultimate success of Curtis petition. We simply conclude that, while further examination of Curtis claims may well demonstrate that they are meritless or procedurally barred, the current state of the record is insufficient to conclusively establish that his petition is doomed on these bases. Accordingly, we grant a certificate of appealability, grant Curtis pending motions to proceed in forma pauperis and to remand the case to the district court, vacate the district court s judgment, and remand the case to the district court for further proceedings. facts and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. VACATED AND REMANDED 4