28 F. 3d 1208 - Bowling v. K Smith
28 F3d 1208 Bowling v. K Smith
28 F.3d 1208
Larry Bruce BOWLING, Petitioner Appellant,
v.
Chairman, Virginia Parole Board; David K. SMITH,
Respondents Appellees.
No. 94-6376.
United States Court of Appeals, Fourth Circuit.
Submitted June 8, 1994.
Decided July 19, 1994.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Chief District Judge. (CA-93-875-R)
Larry Bruce Bowling, appellant Pro Se.
Mary Elizabeth Shea, Office of the Attorney General of Virginia, Richmond, VA, for appellees.
VACATED AND REMANDED.
Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.
PER CURIAM
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Larry Bowling appeals from the district court's order denying his request for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 (1988). The district court found that Bowling's petition contained both exhausted and unexhausted claims. The court dismissed the unexhausted claims 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 presented in the materials before the court and argument would not aid the decisional process.
VACATED AND REMANDED