Stanford Anthony Shane v. Howard Beyers, Attorney General of North Carolina

833 F.2d 310 Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Stanford Anthony SHANE, Petitioner-Appellant, v. Howard BEYERS, Attorney General of North Carolina, Respondents-Appellees. No. 87-7254. United States Court of Appeals, Fourth Circuit. Submitted Sept. 30, 1987. Decided Nov. 4, 1987. Stanford Anthony Shane, appellant pro se. Richard Norwood League, Office of Attorney General, for appellees. Before K.K. HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: [1] Stanford A. Shane, a New Jersey prisoner, seeks to appeal from the district court's order dismissing his pro se application for habeas corpus relief. The district court determined that Shane 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. [2] We agree with the district court that Shane 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. [3] AFFIRMED AS MODIFIED.