                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT



                              No. 95-7374



MACK WAYNE PETERSON,

                                            Petitioner - Appellant,

          versus

NORTH CAROLINA DEPARTMENT OF CORRECTIONS,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Terrence W. Boyle, District
Judge. (CA-94-979-5-BO)


Submitted:   March 21, 1996                 Decided:   April 4, 1996


Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.

Affirmed as modified by unpublished per curiam opinion.


Mack Wayne Peterson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     Appellant appeals from the district court's order denying

relief on his 28 U.S.C. § 2254 (1988) petition. The district court

dismissed the petition as frivolous. Because Appellant has not

exhausted his claims in state court, we grant a certificate of

probable cause to appeal and modify the dismissal in this case,
pursuant to our authority under 28 U.S.C. § 2106 (1988), to reflect

that the petition is dismissed without prejudice due to Appellant's

failure to exhaust. 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




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