                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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




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