25 F.3d 1038NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Ricky Bruce BARNETTE, Petitioner Appellant,v.H. B. JOHNSON;  Frank Gunter, Respondents Appellees.
No. 93-7001.
United States Court of Appeals, Fourth Circuit.
Submitted May 24, 1994.Decided June 13, 1994.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.  James C. Fox, Chief District Judge.  (CA-93-199).
Ricky Bruce Barnette, appellant Pro Se.
Clarence Joe DelForge, III, Office of the Attorney General of North Carolina, Raleigh, NC, for appellees.
E.D.N.C.
DISMISSED.
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
PER CURIAM:


1
Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. Sec. 2254 (1988) petition.  Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal substantially on the reasoning of the district court.  Barnette v. Johnson, No. CA-93-199 (E.D.N.C. Aug. 31, 1993).  However, because we note that the district court allowed Appellant the opportunity to exhaust his claims in the state court, we modify the dismissal in this case, pursuant to our authority under 28 U.S.C. Sec. 2106 (1988), to reflect that it is without prejudice.  We deny Appellant's motion for 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.  We also deny Appellant's motion for appointment of counsel.


2
DISMISSED AS MODIFIED.

