Ernest J. Watson, Petitioner-appellant, v. State of Maryland, Respondent-appellee, 900 F.2d 257 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 900 F.2d 257 (4th Cir. 1990) Submitted: Jan. 11, 1990. Decided: March 30, 1990

Appeal from the United States District Court for the District of Maryland, at Baltimore. Paul V. Niemeyer, District Judge. (C/A No. 88-1351)

Ernest J. Watson, appellant pro se.

Ann N. Bosse, Assistant Attorney General, Baltimore, Md., for appellee.

D. Md.

AFFIRMED AS MODIFIED.

Before DONALD RUSSELL, PHILLIPS and SPROUSE, Circuit Judges.

PER CURIAM:


Ernest J. Watson, a Maryland inmate, appeals the order of the district court dismissing on the merits his petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. We affirm on the modified grounds that petitioner failed to exhaust state remedies.

A prisoner petitioning for federal habeas corpus must first present his claims to state courts and exhaust all available state remedies. 28 U.S.C. § 2254(b) (c). Watson petitioned for state habeas corpus relief but did not pursue his remedies under Maryland's Uniform Post-Conviction Procedure Act, Md.Ann.Code art. 27, Sec. 645A. Since the denial of a writ of habeas corpus by a Maryland trial court is not normally appealable, and since the Maryland Post-Conviction Procedure Act does provide for appeal, an action for state habeas is not sufficient to exhaust available state court remedies in Maryland. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n. 1 (4th Cir. 1971).

We therefore grant a certificate of probable cause to appeal, modify the judgment to reflect dismissal without prejudice for failure to exhaust state remedies, and affirm the judgment as modified. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid in the decisional process.

AFFIRMED AS MODIFIED