Howard William Coleman, Petitioner-appellant, v. James N. Rollins, Warden, Respondent-appellee, 866 F.2d 1415 (4th Cir. 1989)

Howard William Coleman, a Maryland inmate, was convicted of two counts of first degree sexual assault, one count of kidnapping, and one count of assault and battery. The convictions were affirmed on appeal. He applied to the Maryland state courts for post-conviction relief, alleging denial of effective assistance of counsel and denial of due process and equal protection. The Maryland circuit court and special court of appeals denied relief, and certiorari to the Maryland Court of Appeals was denied.

Coleman petitioned the United States District Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He again asserted denial of effective assistance of counsel and denial of due process and equal protection as grounds for habeas relief. He also alleged in his district court petition that the evidence used to convict him was insufficient to prove his guilt beyond a reasonable doubt. The district court dismissed Coleman's petition and denied his motion for reconsideration.^* 

Coleman challenges the district court's dismissal of his habeas petition for failure to exhaust one of his claims. That dismissal was proper, however, because Coleman raised the sufficiency of the evidence claim for the first time in his district court petition. When a habeas petition contains some claims which have been exhausted in state proceedings and some claims which have not been exhausted, it must be dismissed without prejudice to allow exhaustion of all claims. Rose v. Lundy, 455 U.S. 509 (1982).

Because the district court's dismissal of Coleman's mixed petition was proper, we deny a certificate of probable cause and dismiss the appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

DISMISSED.