Kay Frances Gibbs, Petitioner-appellant, v. State of North Carolina, Respondent-appellee, 59 F.3d 166 (4th Cir. 1995)

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U.S. Court of Appeals for the Fourth Circuit - 59 F.3d 166 (4th Cir. 1995) Submitted May 18, 1995. Decided June 27, 1995

Kay Frances Gibbs, Appellant Pro Se.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Appellant seeks to appeal the district court's orders denying relief on her 28 U.S.C. § 2254 (1988) petition and denying her motion for reconsideration. We have reviewed the record and the district court's opinions and find no reversible error. Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court. Gibbs v. North Carolina, No. CA-95-1014-5-HC (E.D.N.C. Feb. 13, 1995; Mar. 1, 1995). However, because the Appellant may refile her petition upon the exhaustion of state remedies, we modify the judgment to be a dismissal without prejudice. See 28 U.S.C. § 2106 (1988). 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.