983 F.2d 1055
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Albert Charles BURGESS, Jr., Petitioner-Appellant,v.Parker EVATT;  State of South Carolina, Respondents-Appellees.
No. 92-6759.
United States Court of Appeals,Fourth Circuit.
Submitted:  December 4, 1992Decided:  December 31, 1992

Appeal from the United States District Court for the District of South Carolina, at Columbia.  William B. Traxler, Jr., District Judge.  (CA-91-1928-3)
Albert Charles Burgess, Jr., Appellant Pro Se.
Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees.
D.S.C.
Affirmed.
Before MURNAGHAN, HAMILTON, and WILLIAMS, Circuit Judges.
PER CURIAM:

OPINION

1
Albert Charles Burgess seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.s 2254.  Our review of the record and the district court's order accepting the recommendation of the magistrate judge discloses that this appeal is without merit.  Accordingly, we grant a certificate of probable cause and affirm the district court's order as modified.*   Burgess v. Evatt, No. CA-91-1928-3 (D.S.C. June 30, 1992).  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


*
 The district court's order is hereby modified to reflect a dismissal without prejudice to allow exhaustion of state court remedies, rather than summary judgment


