Marvin Nathaniel Demby v. State of Maryland Robert A. Harleson Attorney General of the State of Maryland

955 F.2d 40, 1992 U.S. App. LEXIS 8593, 1992 WL 27435

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 19, 1992
• Docket: 92-6043
• Status: Unpublished

Opinion

955 F.2d 40

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Marvin Nathaniel DEMBY, Petitioner-Appellant,
v.
State of MARYLAND; Robert A. Harleson; Attorney General of
the State of Maryland, Respondents-Appellees.

No. 92-6043.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 3, 1992.
Decided Feb. 19, 1992.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-91-1949-JFM)

Marvin Nathaniel Demby, appellant pro se.

John Joseph Curran, Jr., Attorney General, Kreg Paul Greer, Assistant Attorney General, Baltimore, Md., for appellees.

D.Md.

REVERSED AND REMANDED.

Before WIDENER, HAMILTON and LUTTIG, Circuit Judges.

OPINION

PER CURIAM:

Marvin Nathaniel Demby appeals from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). The district court dismissed Demby's petition without prejudice after determining that Claim 3 contained both exhausted and unexhausted subclaims. Although we agree with the district court that some of the claims stated in Demby's initial petition are unexhausted and that dismissal would normally be warranted under Rose v. Lundy, 455 U.S. 509 (1982), Demby filed a timely request to withdraw his unexhausted claims which the district court apparently overlooked. We therefore reverse the district court's decision and remand this case for consideration of the merits of Demby's remaining claims. 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.