UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7212

THOMAS WOODROW RICE,

Petitioner - Appellant,

versus

RICKY JACKSON,

Respondent - Appellee.

Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Graham C. Mullen, District Judge. (CA-97-289-3-MU)

Submitted: April 16, 1998 Decided: April 29, 1998

Before WILKINS and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Thomas Woodrow Rice, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant seeks to appeal the district court's order denying

relief on his petition filed under

(West 1994 &

Supp. 1997). The district court held that Appellant failed to state

a claim upon which relief may be granted. Rice v. Jackson, No. CA- 97-289-3-MU (W.D.N.C. July 30, 1997). We agree that the this claim

should be dismissed but based on Appellant's failure to exhaust his

state court remedies. As such, the dismissal is without prejudice.

Accordingly, we deny a certificate of appealability and the dismiss the appeal. 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.

DISMISSED

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