Earnest Jerome Russell, Petitioner-appellant, v. Larry W. Huffman, Warden, Mary Sue Terry, Virginia Attorneygeneral, Respondents-appellees, 925 F.2d 1457 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 925 F.2d 1457 (4th Cir. 1991) Submitted Sept. 28, 1990. Decided Feb. 19, 1991

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (CA-89-1624-AM)

Earnest Jerome Russell, appellant pro se.

E.D. Va.

VACATED AND REMANDED.

Before MURNAGHAN, WILKINSON and NIEMEYER, Circuit Judges.

PER CURIAM:


Earnest Jerome Russell appeals from the district court's order dismissing without prejudice his habeas corpus petition filed pursuant to 28 U.S.C. § 2254 for failing to comply with a court order. We vacate and remand.

The district court ordered Russell to submit facts demonstrating that he had exhausted state court remedies. Russell answered by submitting a statement that he had presented his claims to the Virginia Supreme Court and attaching a copy of that court's order dismissing his habeas corpus petition. The Virginia Supreme Court's order addresses five claims, the number of claims submitted to the district court. Despite this attempt to prove exhaustion, the district court dismissed the petition for failure to comply with the court's order. In its dismissal, it stated that Russell had not submitted all of his claims to the Supreme Court of Virginia. It did not elaborate further.

Litigants coming to this court pro se are generally afforded a margin of liberality. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). In Carter v. Hutto, 781 F.2d 1028, 1032-33 (4th Cir. 1986), this Court held that the district court abused its discretion in dismissing the complaint of a pro se litigant who had substantially complied with a pretrial order without first informing the litigant of the deficiency of his response and affording him the opportunity to cure the defect. In the present case, Russell substantially complied with the district court's order to prove exhaustion. At the very least, he was entitled to a clarified instruction as to what he needed to do to satisfy the court's request and an opportunity to correct his response accordingly. Therefore, we find the district court abused its discretion in dismissing the petition.

Accordingly, we grant a certificate of probable cause to appeal. The decision of the district court is vacated and the case remanded for further proceedings.

VACATED AND REMANDED.