Jasper J. Spruill, Petitioner-appellant, v. W. Murray, Director of the Virginia Department Ofcorrections, Respondent-appellee, 958 F.2d 369 (4th Cir. 1992)

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U.S. Court of Appeals for the Fourth Circuit - 958 F.2d 369 (4th Cir. 1992) Submitted March 2, 1992. Decided March 13, 1992

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Richard B. Kellam, Senior District Judge. (CA-91-535-N)

Jasper J. Spruill, appellant pro se.

E.D. Va.


Before SPROUSE and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.



Jasper J. Spruill seeks to appeal the district court's order dismissing without prejudice his habeas corpus petition filed pursuant to 28 U.S.C. § 2254 (1988), for failing to exhaust state court remedies. Our review of the record and the district court's opinion discloses that this appeal is without merit.*  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Spruill v. Murray, No. CA-91-535-N (E.D. Va. Sept. 17, 1991). 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.



Although there is a question concerning whether the notice of appeal was timely filed, construing Fed. R. Civ. P. 58 to prevent the forfeiture of an appeal, we find that the district court's order did not comply with the separate judgment requirement of Rule 58 and that, therefore, the appeal may be addressed on its merits. Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir. 1978)