Harrison B. Graham, Jr., Petitioner-appellant, v. James N. Rollins, Warden, Maryland Penitentiary, Respondent-appellee, 989 F.2d 492 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 989 F.2d 492 (4th Cir. 1993) Submitted: September 9, 1992Decided: March 19, 1993

Appeal from the United States District Court for the District of Maryland, at Baltimore. Norman P. Ramsey, Senior District Judge. (CA-91-1024-R)

Harrison B. Graham, Jr., Appellant Pro Se. John Joseph Curran, Jr ., Attorney General, Diane Elizabeth Keller, Assistant Attorney General, Baltimore, Maryland, for Appellee.

D. Md.

AFFIRMED.

Before HALL, WILKINSON, and NIEMEYER, Circuit Judges.

PER CURIAM:


OPINION

Harrison Graham, Jr., 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 (1988). 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 remedies. 28 U.S.C. § 2254(b) (c) (1988). Graham petitioned for state habeas corpus relief but did not pursue his remedies under Maryland's Uniform Post-Conviction Procedure Act ("UPCPA"), Md. Ann. Code art. 27, § 645A (1992). Because denial of a writ of habeas corpus by a Maryland trial court is not normally appealable, and because the UPCPA does not provide for appeal, an action for state habeas is not sufficient to exhaust available court remedies in Maryland. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n.1 (4th Cir. 1971). Graham may still have a remedy available under the UPCPA because it is not clear whether the denial of his state habeas petition constitutes a final litigation of the claims raised in it after a full and fair hearing. See Md. Ann. Code art. 27, § 645A(b) (1992).

We therefore 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 the decisional process.

AFFIRMED AS MODIFIED