UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 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
2
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,
3
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
4