                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 01-7710



DAVID LAWRENCE DIXON,

                                            Petitioner - Appellant,

          versus


HOWARD H. PAINTER, Warden,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, District
Judge. (CA-99-0964-1)


Submitted:   November 29, 2001          Decided:    December 10, 2001


Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.


Dismissed as modified by unpublished per curiam opinion.


David Lawrence Dixon, Appellant Pro Se.     Dawn Ellen Warfield,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     David Lawrence Dixon appeals the district court’s order de-

nying relief on his petition filed under 28 U.S.C.A. § 2254 (West

1994 & Supp. 2001) because some of Dixon’s claims were not ex-

hausted in state court.    We have reviewed the record and the dis-

trict court’s opinion accepting the recommendation of the mag-

istrate judge and find no reversible error. However, we modify the

district court’s order to reflect dismissal without prejudice to

Dixon’s ability to refile after he exhausts state remedies.    See

Evans v. Smith, 220 F.3d 306, 324-25 (4th Cir. 2000). Accordingly,

we deny a certificate of appealability and dismiss the appeal as so

modified.     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




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