54 F.3d 772NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Willie Walter BUTLER, Petitioner-Appellant,v.David K. SMITH, Respondent-Appellee.
No. 93-7229.
United States Court of Appeals, Fourth Circuit.
Submitted March 7, 1995.Decided May 16, 1995.

Willie Walter Butler, appellant pro se.
Robert Harkness Herring, Jr., Assistant Attorney General, Mary Christine Maggard, Office of the Attorney General of Virginia, Richmond, VA, for Appellee.
Before WIDENER, NIEMEYER, and MICHAEL, 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 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.*  Butler v. Smith, No. CA-92-210-R (W.D.Va., Oct. 26, 1993).  We modify the district court's order to reflect that the dismissal of Appellant's due process claim was without prejudice.  See 28 U.S.C. Sec. 2106 (1988).  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 AS MODIFIED


*
 We note that the district court correctly concluded that Appellee accurately calculated Appellant's sentence.  The petition was therefore properly subject to summary judgment


