852 F.2d 565
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Norris Leo DANGLER, Plaintiff-Appellant,
v.
MONTGOMERY COUNTY, MARYLAND, Defendant-Appellee.
No. 88-7601.
United States Court of Appeals, Fourth Circuit.
Submitted: May 23, 1988.
Decided: July 21, 1988.
Norris Leo Dangler, appellant pro se.
Karen Louise Federman (Katz, Frome, Slan & Bleecker, PA), for appellee.
Before SPROUSE, CHAPMAN and WILKINSON, Circuit Judges.
PER CURIAM:
Norris Leo Dangler appeals from the district court's order construing his 42 U.S.C. Sec. 1983 complaint as a habeas corpus petition and denying relief for failure to exhaust state remedies under 28 U.S.C. Sec. 2254(b). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court. Dangler v. Montgomery County, Maryland, C/A No. 87-580-R (D.Md. Jan. 25, 1988). The district court's order is modified in one respect: Dangler's claims are dismissed without prejudice and he may raise them again in the district court when he has exhausted his state remedies. 28 U.S.C. Sec. 2106.
The defendant's motion to dismiss this appeal is denied. We note that the district court's failure to issue a certificate of probable cause to appeal is not a ground for dismissal of the appeal, as the certificate can be granted by this Court if appropriate. 28 U.S.C. Sec. 2253.
We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
AFFIRMED AS MODIFIED.