Norris Leo Dangler, Plaintiff-appellant, v. Montgomery County, Maryland, Defendant-appellee, 852 F.2d 565 (4th Cir. 1988)

Norris Leo Dangler appeals from the district court's order construing his 42 U.S.C. § 1983 complaint as a habeas corpus petition and denying relief for failure to exhaust state remedies under 28 U.S.C. § 2254(b). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court. Dangler v. Montgomery County, Maryland, C/A No. 87-580-R (D. Md. Jan. 25, 1988). The district court's order is modified in one respect: Dangler's claims are dismissed without prejudice and he may raise them again in the district court when he has exhausted his state remedies. 28 U.S.C. § 2106.

The defendant's motion to dismiss this appeal is denied. We note that the district court's failure to issue a certificate of probable cause to appeal is not a ground for dismissal of the appeal, as the certificate can be granted by this Court if appropriate. 28 U.S.C. § 2253.

We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED AS MODIFIED.