Categories: 46 F.3d ___

46 F.3d 1126

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Curtis Lee TERRY, Petitioner–Appellant,
v.
STATE OF NORTH CAROLINA, Respondent–Appellee.

No. 94-7222.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 13, 1994.
Decided Jan. 19, 1995.

Curtis Lee Terry, Appellant Pro Se.

Before WIDENER and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM:

Appellant seeks to appeal the district court’s order dismiss ing his 28 U.S.C. Sec. 2254 (1988) petition for failure to exhaust state remedies. Our review of the record and the district court’s opinion discloses that his appeal is without merit. Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court. Terry v. North Carolina, No. CA94-368 (E.D.N.C. Sept. 14, 1994). However, because the Appellant may refile his petition upon the exhaustion of state remedies, we modify the judgment to be a dismissal without prejudice. See 28 U.S.C. Sec. 2106 (1988). 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