UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID JOHNSON,
Petitioner-Appellant,

v.
                                                                   No. 96-7867
MICHAEL MOORE, Director; CHARLES
M. CONDON, Attorney General for
the State of South Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Henry M. Herlong, Jr., District Judge; Margaret B. Seymour,
Magistrate Judge.
(CA-96-187-4-20BE)

Submitted: August 29, 1997

Decided: September 17, 1997

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

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David Johnson, Appellant Pro Se. Donald John Zelenka, Chief Dep-
uty Attorney General, Columbia, South Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David Johnson appeals from the district court's order adopting the
report and recommendation of the magistrate judge and denying his
request for habeas relief pursuant to 28 U.S.C.A.§ 2254 (West 1994
& Supp. 1997). Johnson also appeals the denial of his motion for
reconsideration. The district court found that Johnson's petition con-
tained both exhausted and unexhausted claims. The court dismissed
the unexhausted claim without prejudice and denied the exhausted
claims on the merits. When, however, a habeas petition contains both
exhausted and unexhausted claims the district court must dismiss the
entire petition without prejudice. Rose v. Lundy , 455 U.S. 509, 522
(1982). The petitioner may then either resubmit a petition containing
only the exhausted claims or exhaust all claims in state court and then
file a new petition. Id. at 520.

Accordingly, the district court's order is vacated, and the case is
remanded for further proceedings consistent with this opinion. We
grant a certificate of probable cause to appeal. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

VACATED AND REMANDED

                    2
