                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2476
                                    ___________

Cloyce Peters,                           *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Larry Norris, Director, Arkansas         *
Department of Correction,                *      [UNPUBLISHED]
                                         *
             Appellee.                   *
                                    ___________

                          Submitted: April 12, 2001
                              Filed: April 16, 2001
                                  ___________

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       Cloyce Peters appeals from the District Court&s dismissal of his 28 U.S.C.
§ 2254 petition for failure to exhaust state remedies. The District Court made its
decision without considering whether any non-futile state remedies remained for Peters.
That is contrary to the procedure established in Smittie v. Lockhart, 843 F.2d 295, 296
(8th Cir. 1988).
       Accordingly, we reverse and remand with instructions that the District Court
order the service of Peters's petition on the State and then proceed in accordance with
Smittie.

      A true copy.

             Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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