UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7710
DAVID LAWRENCE DIXON,
Petitioner - Appellant,
versus
HOWARD H. PAINTER, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, District
Judge. (CA-99-0964-1)
Submitted: November 29, 2001 Decided: December 10, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Dismissed as modified by unpublished per curiam opinion.
David Lawrence Dixon, Appellant Pro Se. Dawn Ellen Warfield,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Lawrence Dixon appeals the district court’s order de-
nying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 2001) because some of Dixon’s claims were not ex-
hausted in state court. We have reviewed the record and the dis-
trict court’s opinion accepting the recommendation of the mag-
istrate judge and find no reversible error. However, we modify the
district court’s order to reflect dismissal without prejudice to
Dixon’s ability to refile after he exhausts state remedies. See
Evans v. Smith, 220 F.3d 306, 324-25 (4th Cir. 2000). Accordingly,
we deny a certificate of appealability and dismiss the appeal as so
modified. 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.
DISMISSED AS MODIFIED
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