                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-1395


DOUGLAS ALLEN RIVENBARK,

                  Petitioner – Appellant,

             v.

COMMONWEALTH OF VIRGINIA;         ROBERT   F.   MCDONALD,   Esquire,
Attorney General,

                  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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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       his     self-styled      “Petition         for       Writ   of

Mandamus,”      which   the     district   court   construed     as        a   mandamus

petition under 28 U.S.C. § 1651 (2000).                  After conducting its

28 U.S.C.     §§ 1915(e)(2)       and   1915(A)    screening,         the      district

court    recognized     that     Rivenbark     sought    a    writ     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    remand    the     district    court’s       order     for      further

proceedings.      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




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