UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE RAY INGRAM,
Petitioner-Appellant,

v.
                                                                      No. 97-7557
STATE OF SOUTH CAROLINA; CHARLES
MOLONY CONDON; COLIE L.
RUSHTON,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-96-2554-3-10BC)

Submitted: June 30, 1998

Decided: October 16, 1998

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Willie Ray Ingram, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Willie Ingram appeals from a district court order dismissing with-
out prejudice his action seeking habeas corpus relief under 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). The district court found
that, despite having waited for over three and one-half years for a rul-
ing on his state application for postconviction relief, Ingram could not
seek review of his claims in federal court because they had not been
exhausted in state court. The court found that Ingram's state remedy
was not ineffective because he never sought mandamus relief from
the South Carolina Supreme Court, which could have directed some
form of action to remedy the inordinate delay in Ingram's case.

Where, however, a habeas petitioner fails to exhaust his state reme-
dies and the state court would now find his claims procedurally barred
if he tried to do so, further exhaustion is not required. See Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991); Breard v. Pruett, 134
F.3d 615, 619 (4th Cir. 1998). But, under such circumstances, federal
habeas review is barred unless the petitioner can establish cause for
his default and actual prejudice. See Teague v. Lane, 489 U.S. 288,
297-98 (1989). We conclude that the posture of this case precludes
Ingram's return to state court.

First, prior to the district court's decision, the state court, at
Ingram's request, voluntarily dismissed with prejudice his second
post-conviction relief application. Clearly, this constituted a proce-
dural default. Second, Ingram would be barred under South Carolina
law from presenting claims that could have been, but were not, pres-
ented in his first state post-conviction relief application, absent a suf-
ficient reason for the failure. See S.C. Code Ann. § 17-27-90 (Law.
Co-op 1985); Aice v. State, 409 S.E.2d 392, 393-94 (S.C. 1991).
Based on the nature of Ingram's federal claims it appears that they
could have been raised at the time of his first state application. If
Ingram cannot establish cause for his failure to raise his federal
claims in his first state application, the district court may conclude
that Ingram's claims would be procedurally defaulted in state court
and that federal habeas review is barred. If he can establish good
cause, the court may conclude that the South Carolina courts would

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not find the claims procedurally barred based on Ingram's failure to
raise them in his first application. Federal habeas review will then be
appropriate if Ingram can make all other pertinent showings of cause
and prejudice.*

Ingram's motion to add Colie Rushton, Warden of McCormick
Correctional Institution, as a party Respondent, is granted, although
we find that Ingram's transfer to McCormick during the pendency of
this proceeding constituted no prejudical violation, if any, of Federal
Rule of Appellate Procedure 23(a).

Accordingly, we vacate the order of the district court and remand
for further consideration consistent with this opinion. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

VACATED AND REMANDED WITH INSTRUCTIONS
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*We note that Ingram asserted below that his voluntary dismissal was
necessitated by the state court's inordinate delay. In rejecting this conten-
tion, the district court found that Ingram could have avoided the delay by
seeking mandamus relief. If the district court revisits this issue on
remand, we note that it should discuss Ingram's allegations that he twice
sought mandamus relief to no avail.

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