Andrew Lee Harris, Jr., Plaintiff-appellant, v. Wayne B. Winebrenner, Defendant-appellee, 808 F.2d 834 (4th Cir. 1986)

Andrew L. Harris, Jr., a Maryland inmate, appeals the judgment of the district court dismissing without prejudice his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. In his petition, Harris sought relief based on four claims: (1) certain evidence against him was obtained through an illegal search and seizure; (2) the trial for the two thefts should have been severed because the crimes were committed several weeks apart; (3) a statement made by him should not have been introduced at trial because the state did not disclose it in discovery; and (4) he was denied the effective assistance of counsel in that his trial attorney made no attempt to discredit the state's witnesses; failed to adequately rebut or question the sufficiency of the state's evidence, including his confession and the admission of physical evidence; and failed to file a timely motion to sever the charges.

A review of the record reveals that this petition contains both exhausted and unexhausted claims. The district court therefore properly dismissed the petition without prejudice because of Harris' failure to exhaust his available state court remedies. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(c).

Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal.

DISMISSED.