Robert H. Campbell v. James Aiken, Attorney General of the State of South Carolina, Respondents

833 F.2d 1004, 1987 U.S. App. LEXIS 14976, 1987 WL 39044

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 13, 1987
• Docket: 87-7249
• Status: Unpublished

Opinion

833 F.2d 1004
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Robert H. CAMPBELL, Petitioner-Appellant,
v.
James AIKEN, Attorney General of the State of South
Carolina, Respondents- Appellees.

No. 87-7249.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 30, 1987.
Decided: Nov. 13, 1987.

Robert H. Campbell, appellant pro se.

Sally M. Rentiers, Assistant Solicitor, for appellees.

Before MURNAGHAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Robert Campbell, a South Carolina inmate, seeks to appeal from the district court's order dismissing his pro se application for habeas corpus relief. The district court determined that Campbell had not exhausted his state court remedies and dismissed the petition on that basis. The district court order does not reflect that the dismissal was without prejudice.

We agree with the district court that Campbell has not exhausted his state court remedies. However, the dismissal should be without prejudice. Therefore, pursuant to 28 U.S.C. Sec. 2106 we modify the district court's order to reflect that the dismissal is without prejudice and affirm the judgment as modified. A certificate of probable cause to appeal is granted. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED AS MODIFIED.