Curtis v. Chesterfield County Commonwealth

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7958

DEREK CURTIS,

Petitioner - Appellant,

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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Curtis seeks to appeal the district court’s

order dismissing his 28 U.S.C. § 2254 (2006) petition as

impermissibly successive. We grant Curtis a certificate 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 appealability. See 28 U.S.C.

§ 2253(c)(1)(A) (2006). A certificate of appealability will not

issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). 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 review of the record convinces us that the

district court’s procedural ruling was incorrect. 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 Court for the City of

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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.” Vasquez v. Parrott, 318 F.3d 387, 390 (2d

Cir. 2003). 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.” Rule 2(e), 28 U.S.C. foll. § 2254.

See Hardemon v. Quarterman, 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.” Slack,

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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 sponte dismissal on preliminary review “[i]f it plainly

appears from the petition and any attached 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. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED