Hartzel Ray Foster, Petitioner-appellant, v. Jerry Hedrick, Warden, West Virginia Penitenitary,respondent-appellee, 856 F.2d 186 (4th Cir. 1988)

Hartzel Ray Foster claimed in his 28 U.S.C. § 2254 petition that he was denied access to the courts, due process, and equal protection when the West Virginia Supreme Court summarily refused his petition for appeal from his conviction of murder. The district court accepted the magistrate's recommendation that to require exhaustion would be futile and that Foster's claims were not of constitutional magnitude. The court accordingly dismissed the petition, and Foster appeals.

We express no opinion on the question of futility of exhaustion. Under Granberry v. Greer, 55 U.S.L.W. 4494 (U.S. Apr. 21, 1987) (No. 85-6790), there are instances in which federal courts may address the merits of a habeas corpus petition even absent exhaustion. Failure to present a colorable claim is one such instance. 55 U.S.L.W. at 4495-96. Accordingly, as Foster's claims regarding the refusal of his petition for appeal raise matters of state law and fail to establish a constitutional violation, cf. Griffin v. Illinois, 351 U.S. 12 (1956), the district court correctly decided that Foster is not entitled to issuance of the writ.

As the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal.

DISMISSED.