John Earley Dillard, Petitioner Appellant, v. Edward W. Murray, Director of the Virginia Department Ofcorrections, Respondent Appellee, 16 F.3d 409 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 16 F.3d 409 (4th Cir. 1994)

Submitted January 20, 1994. Decided February 4, 1994

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk, J. Calvitt Clarke, Jr., Senior District Judge. (CA-93-79-N)

John Earley Dillard, Appellant Pro Se.

Alan Katz, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

E.D. Va.


Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.



Appellant seeks to appeal the dismissal of his 28 U.S.C. § 2254 (1988) petition for failure to exhaust state remedies. Our review of the record and the distict court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is meritless for the reasons stated by the district court. Dillard v. Murray, No. CA-93-79-N (E.D. Va. Aug. 20, 1993). However, the district court's order does not specify that the dismissal was without prejudice. Accordingly, we grant a certificate of probable cause to appeal and, pursuant to our authority under 28 U.S.C. § 2106 (1988), we modify the judgment to provide that the petition is dismissed without prejudice. We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.