Michael Estep, Petitioner-appellant, v. Jerry C. Hedrick, Warden, Respondent-appellee, 872 F.2d 417 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 872 F.2d 417 (4th Cir. 1989) Submitted Feb. 27, 1989. Decided March 16, 1989

Michael Estep, appellant pro se.

Before DONALD RUSSELL and WIDENER, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Michael Estep has attempted to have his criminal conviction and sentence reviewed on direct appeal by the West Virginia Supreme Court since his sentence was imposed in May 1985. Being unsuccessful in his efforts, Estep filed a 28 U.S.C. § 2254 petition. Estep sought appellate review of his conviction and sentence, an unconditional discharge, and a bar to further prosecution. The district court dismissed Estep's petition under 28 U.S.C. § 1915(d) for failure to exhaust state remedies.

We are sympathetic to Estep's plight but, in light of the documents in this record (supplied by Estep), we are constrained to hold that Estep must pursue the appeal recently ordered by the West Virginia Supreme Court. We note that the West Virginia Supreme Court has not been inattentive to Estep's requests and that in its latest order, dated March 3, 1988, the court indicates that Estep's belated appeal will be allowed and that the state will waive any tardiness objections. Thus, Estep apparently will get the appellate review he seeks. Therefore, on the present record, we cannot say that Estep has no effective state remedy and is no longer subject to the exhaustion requirement.

Accordingly, we deny a certificate of probable cause and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the record before this Court and oral argument will not aid the decisional process.