Troussant Delano Lett, Petitioner-appellant, v. W.d. Blankenship, Warden, Respondent-appellee, 883 F.2d 69 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 883 F.2d 69 (4th Cir. 1989) Submitted April 13, 1989. Decided Aug. 7, 1989

Troussant Delano Lett, appellant pro se.

Before WIDENER, MURNAGHAN, and SPROUSE, Circuit Judges.

PER CURIAM:


Troussant Lett filed a 28 U.S.C. § 2254 petition raising claims he had argued on direct appeal in the Virginia Court of Appeals and also, raising new claims. The district court entered a sua sponte order requiring Lett to file documents demonstrating that he had exhausted his state remedies.*  See 28 U.S.C. § 2254(b) and (c). Lett failed to file proper documentation of exhaustion and the district court dismissed Lett's petition without prejudice for failure to exhaust state remedies. We deny a certificate of probable cause and dismiss the appeal.

We observe that Lett's claims are unexhausted because either he failed to seek further review of the decision of the court of appeals by the Virginia Supreme Court, see Va. Const. art. VI, Sec. 1; Va.Code Ann. Sec. 17-116.08, or he did not raise his other claims in a state habeas petition in the Virginia Supreme Court. See Va.Code Secs. 17-97 and -116.05:1(B). Accordingly, the district court properly dismissed Lett's petition without prejudice to refile his petition upon a showing that he has properly exhausted state remedies.

We dispense with oral argument because the facts and legal contentions are adequately presented on this record and oral argument will not aid the decisional process.

DISMISSED.

 *

The district court is authorized to enter a sua sponte order in this situation. See Habeas Corpus Rule 4, 28 U.S.C. foll. Sec. 2254, Advisory Committee Note