Washie Allen, Jr., Petitioner-appellant, v. George N. Martin, Iii, Warden, Daniel R. Mcleod, Attorneygeneral of the State of South Carolina,respondents-appellees, 846 F.2d 69 (4th Cir. 1988)

Washie Allen, a South Carolina inmate, seeks to appeal from the district court's dismissal of his habeas corpus petition. The district court determined that Allen had not exhausted his state court remedies because he had failed to appeal the denial of his application for post-conviction relief to the South Carolina Supreme Court. The district court's order does not reflect that the dismissal was without prejudice.

We agree with the district court that Allen has not exhausted his state court remedies. However, the dismissal should be without prejudice. Therefore, pursuant to 28 U.S.C. § 2106, we modify the district court's order to reflect that the dismissal is without prejudice and affirm the judgment as modified. We dispense with oral argument because the dispositive issues have recently been decided authoritatively. A certificate of probable cause to appeal is granted.

AFFIRMED AS MODIFIED.