Aaron Holsey, Petitioner Appellant, v. Warden Smith, Respondent Appellee, 30 F.3d 129 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 30 F.3d 129 (4th Cir. 1994)

Submitted July 19, 1994. Decided August 1, 1994


Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CA-92-3335)

Aaron Holsey, appellant, Pro Se.

John Joseph Curran, Jr., Atty. Gen., Tarra DeShields-Minnis, Office of the Attorney General of Maryland, Baltimore, MD, for appellee.

D. Md.

VACATED AND REMANDED.

Before PHILLIPS and WILLIAMS, Circuit Judges, and SPROUSE, Senior Circuit Judge.


PER CURIAM

Aaron Holsey appeals the district court's denial of his 28 U.S.C. § 2254 (1988) petition. Because the petition contains both exhausted and unexhausted claims, we grant a certificate of probable cause to appeal, vacate the district court's order, and remand for dismissal of the entire petition.

Holsey raised various substantive challenges to his 1982 conviction for assault with intent to murder. Additionally, Holsey asserted that prison officials miscalculated his sentence. Holsey alleges that this miscalculation has resulted in a presumptive parole date of 2011, while the actual date should be 2007.

The district court noted that the subject petition was the latest in a series of substantive challenges to the conviction and dismissed that portion of the petition as successive. The district court also dismissed Holsey's challenge to his sentence calculation for want of exhaustion.

" [A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. 509, 522 (1982). In accordance with Rose, we vacate the district court's order and remand for dismissal of the entire petition. As our review of the record and other materials before us reveals that it would not significantly aid the decisional process, we dispense with oral argument. The motions for appointment of counsel, for oral argument, for bail, and to submit evidence are denied.

VACATED AND REMANDED