Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.jerry David Reeder, Petitioner-appellant, v. Harry L. Allsbrook, Jr.; Franklin E. Freeman, Jr.,respondents-appellees, 81 F.3d 151 (4th Cir. 1996)

Appellant seeks to appeal the magistrate judge's order dismissing his 28 U.S.C. § 2554 (1988) petition.^*  We have reviewed the record and find that Appellant has failed to exhaust his state remedies. The principles of comity which underlie the exhaustion requirement dictate that a state be presented with the opportunity to review federal constitutional challenges whether or not the state will choose to avail itself of that opportunity. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Accordingly, we agree with the dismissal of Reeder v. Allsbrook, No. CA-94-218-2 (M.D.N.C. June 27, 1995), but modify to dismiss without prejudice so that Appellant may properly exhaust his state remedies.

Because Appellant has failed to demonstrate the requisite extraordinary circumstances, we also deny his motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED