Marvin Nathaniel Demby, Petitioner-appellant, v. State of Maryland; Robert A. Harleson; Attorney General Ofthe State of Maryland, Respondents-appellees, 955 F.2d 40 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 955 F.2d 40 (4th Cir. 1992) Submitted Feb. 3, 1992. Decided Feb. 19, 1992

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-91-1949-JFM)

Marvin Nathaniel Demby, appellant pro se.

John Joseph Curran, Jr., Attorney General, Kreg Paul Greer, Assistant Attorney General, Baltimore, Md., for appellees.

D. Md.


Before WIDENER, HAMILTON and LUTTIG, Circuit Judges.



Marvin Nathaniel Demby appeals from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). The district court dismissed Demby's petition without prejudice after determining that Claim 3 contained both exhausted and unexhausted subclaims. Although we agree with the district court that some of the claims stated in Demby's initial petition are unexhausted and that dismissal would normally be warranted under Rose v. Lundy, 455 U.S. 509 (1982), Demby filed a timely request to withdraw his unexhausted claims which the district court apparently overlooked. We therefore reverse the district court's decision and remand this case for consideration of the merits of Demby's remaining claims. 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.