Israel v. Director, Virginia Department of Corrections

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7836



JACOB ISRAEL, a/k/a John Langowski,

                                           Petitioner - Appellant,

          versus


DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,

                                            Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-02-497-7)


Submitted:   February 25, 2003            Decided:   March 12, 2003


Before WIDENER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed as modified by unpublished per curiam opinion.


Jacob Israel, Appellant Pro Se. Richard Carson Vorhis, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Jacob Israel appeals the district court’s order denying relief

under 28 U.S.C. § 2254 (2000) on his claim alleging the Virginia

Department of Corrections improperly classified him as ineligible

for parole under Virginia Code § 53.1-151(B1).         Israel initially

filed his complaint under 42 U.S.C. § 1983 (2000).         The district

court dismissed without prejudice and required that Israel file his

claim pursuant to 28 U.S.C. § 2254.      Because Israel does not seek

release from custody, but rather seeks only a determination that he

should not have been classified as ineligible for parole, Israel’s

claim was properly brought under § 1983.        See Strader v. Troy, 571

F.2d 1263, 1269 (4th Cir. 1978).         The district court, however,

properly determined Israel’s claims were without merit because he

has the requisite prior felony convictions to be classified as

parole   ineligible   under   Virginia   law.     We   therefore   affirm

substantially on the reasoning of the district court but modify to

reflect dismissal under § 1983 rather than § 2254.          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.




                                                   AFFIRMED AS MODIFIED




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