UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7374
MACK WAYNE PETERSON,
Petitioner - Appellant,
versus
NORTH CAROLINA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Terrence W. Boyle, District
Judge. (CA-94-979-5-BO)
Submitted: March 21, 1996 Decided: April 4, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Mack Wayne Peterson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order denying
relief on his 28 U.S.C. § 2254 (1988) petition. The district court
dismissed the petition as frivolous. Because Appellant has not
exhausted his claims in state court, we grant a certificate of
probable cause to appeal and modify the dismissal in this case,
pursuant to our authority under 28 U.S.C. § 2106 (1988), to reflect
that the petition is dismissed without prejudice due to Appellant's
failure to exhaust. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
AFFIRMED AS MODIFIED
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