37 F.3d 1493NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Francis ESTRELLA, Petitioner Appellant,v.Lonnie M. SANDERS, Warden, Respondent Appellee.
No. 94-6010.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 26, 1994.Decided Oct. 24, 1994.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.  James C. Cacheris, Chief District Judge.  (CA-92-1175-AM)
Francis Estrella, appellant Pro Se.
Linwood Theodore Wells, Jr., Asst. Atty. Gen., Richmond, VA, for appellee.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, and WILKINSON and HAMILTON, 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 his appeal is without merit.  Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court.  Estrella v. Sanders, No. CA-92-1175-AM (E.D. Va.  Dec. 2, 1993).  However, because the Appellant may refile his petition upon the exhaustion of state remedies, we modify the judgment to be a dismissal 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.


2
AFFIRMED AS MODIFIED.

