Marvin Timothy Benge, Petitioner-appellant, v. James J. Johnson; Attorney General of Virginia,respondents-appellees, 841 F.2d 1122 (4th Cir. 1988)

Marvin Timothy Benge, a Virginia inmate, filed a habeas petition pursuant to 28 U.S.C. § 2254 in which he alleged the following:

(1) the state court unconstitutionally denied him a continuance;

(2) the state court erred by refusing to admit certain evidence;

(3) he was denied effective assistance of counsel and a fair trial; and

(4) Virginia's parole statute discriminates against people with prior Virginia convictions as opposed to people with prior out-of-state convictions.

Benge stated in his petition that he had exhausted issues three and four in two separate state habeas corpus petitions.

The district court dismissed Benge's petition without prejudice because Benge had not demonstrated that he had exhausted his first and second issues.

Benge has filed his informal brief on appeal, and he insists that he has exhausted all of his claims. He states that he raised the first and second issues of the instant petition on direct appeal to the Virginia Supreme Court.

In light of Benge's informal brief, we grant a certificate of probable cause to appeal, vacate the judgment of dismissal, and remand this case to the district court for further review of the exhaustion issue. As the dispositive issues have recently been decided authoritatively, we dispense with oral argument.

VACATED AND REMANDED.