915 F.2d 1565
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Everette Lee POWELL, Petitioner-Appellant,
v.
STATE OF MARYLAND, Respondent-Appellee.
No. 90-6335.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 27, 1990.
Decided Sept. 28, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Edward S. Northrop, Senior District Judge. (CA-89-1767-N)
Everette Lee Powell, appellant pro se.
John Joseph Curran, Jr., Attorney General, Audrey A. Creighton, Assistant Attorney General, Baltimore, Md., for appellee.
D.Md.
AFFIRMED AS MODIFIED.
Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Everette Lee Powell appeals from the district court's order dismissing his petition for a writ of habeas corpus for failure to exhaust state remedies. See Rose v. Lundy, 455 U.S. 509 (1982). Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that the district court failed to dismiss this appeal without prejudice. Accordingly, we modify the district court's opinion to show that the dismissal is without prejudice to Powell's right to refile his petition once he has exhausted his state remedies. We therefore grant a certificate of probable cause to appeal and affirm, as modified, on the reasoning of the district court. Powell v. Maryland, CA-89-1767-N (D.Md. April 23, 1990). 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.
AFFIRMED AS MODIFIED.