Robert Michael Todd, Appellant, v. William D. Leeke, Commissioner, Scdc; John C. Hatfield,warden; and the Attorney General of the State Ofsouth Carolina, Appellees, 807 F.2d 175 (4th Cir. 1986)

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U.S. Court of Appeals for the Fourth Circuit - 807 F.2d 175 (4th Cir. 1986) Submitted Oct. 21, 1986. Decided Dec. 10, 1986

Before WIDENER, PHILLIPS and CHAPMAN, Circuit Judges.

Robert Michael Todd, appellant pro se.

William A. Ready, III, Assistant Attorney General, for appellees.


Robert Michael Todd, a South Carolina inmate, seeks to appeal an order of the district court dismissing his federal habeas petition without prejudice for failure to exhaust state remedies. Todd argues on appeal that his state remedies have been rendered ineffective by the failure of the state circuit judge to enter a final appealable order incorporating the judge's oral ruling denying state habeas relief made at the close of an evidentiary hearing held in state court on October 7, 1985.

Although delay in state proceedings may, under certain circumstances, render state remedies futile, the delay encountered by Todd as of the date the district court dismissed his federal petition, was not so great as to require the district court to inquire at that point into the adequacy of the remedies available to Todd. We accordingly find no error in the district court's dismissal of Todd's petition.

Todd has represented during the pendency of this appeal that the state circuit court still has not entered a final appealable order. We note that the district court's dismissal of Todd's petition was without prejudice and that Todd is free, should he choose to do so, to refile his federal petition and to assert that the now quite lengthy delay in entry of a final order has rendered his state remedies ineffective. See St. Jules v. Beto, 462 F.2d 1365 (5th Cir. 1972).

As the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, deny appointment of cournsel, dispense with oral argument and dismiss the appeal on the reasoning of the magistrate as adopted by the district court. Todd v. Leeke, C/A No. 3:85-2463-OK (D.S.C., Dec. 31, 1985).