Albert Russell Clay, Jr., Petitioner-appellant, v. Edward W. Murray, Director of the Virginia Department Ofcorrections, Respondent-appellee, 960 F.2d 145 (4th Cir. 1992)

Petitioner, Albert Russell Clay, appeals the dismissal of two counts of his petition for habeas corpus by the district court on grounds of procedural default in the state courts. The Virginia Supreme Court had previously dismissed these counts of Clay's state collateral petition under the rule of Penn v. Smyth, 49 S.E.2d 600 (Va. 1948), which requires fact pleading in a habeas petition. Because Clay had not supported his allegations on collateral appeal with a sufficient factual basis, the Virginia Court dismissed the appeal without a review on the merits and without affording Clay an opportunity to amend his petition.

We are of the opinion that the ground of defense stated by the Commonwealth may be an independent state ground but one not adequate under federal habeas law to warrant dismissal. See Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991) (state procedural default based on independent and adequate state rules will bar federal habeas review). A state procedural ground is adequate only where it serves legitimate state interests. Wainwright v. Sykes, 433 U.S. 72, 83 n.8 (1977). We do not find any substantial or legitimate state interest in denying a petitioner the opportunity to replead with more particularity his motion. Therefore, we vacate the order of the district court dismissing the petition and remand the case to the district court for consideration on the merits of Clay's petition. We are further of the opinion, as stated in the magistrate's report, that Clay has complied with the requirements of Rose v. Lundy, 455 U.S. 509 (1982), by exhausting the remainder of the issues contained in his petition.

VACATED AND REMANDED