Randall Wayne Clark, Petitioner-appellant, v. E.m. Grizzard, Warden, Southhampton Correctional Center,respondent-appellee, 912 F.2d 463 (4th Cir. 1990)
Annotate this CaseAppeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (C/A No. 89-726-R)
Anthony Franklin Anderson, Melissa W. Friedman, Roanoke, Va., Kathleen Carolyn Keith, Magee & Associates, Roanoke, Va., for appellant.
Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, Va., for appellee.
W.D. Va.
AFFIRMED AS MODIFIED.
Before K.K. HALL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Randall Wayne Clark seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court correctly determined that Clark's petition presented both exhausted and nonexhausted claims and thus was subject to dismissal on this basis. See Rose v. Lundy, 455 U.S. 509 (1982). It is not clear from the district court's order, however, that the dismissal was without prejudice. Accordingly, we grant a certificate of probable cause to appeal, modify the district court's order, pursuant to 28 U.S.C. § 2106, to reflect that the dismissal of Clark's petition is without prejudice, and affirm 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 the decisional process.
AFFIRMED AS MODIFIED.
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