833 F. 2d 309 - Fann v. State H Wm T
833 F2d 309 Fann v. State H Wm T
833 F.2d 309
Unpublished Disposition
Loren FANN, Petitioner-Appellant,
v.
STATE of North Carolina, Marjorie H. Hollowell, Fred
Spruill, W.M. Long, Garland Baker, John T.
Chaffin, Respondents-Appellees.
No. 87-7291.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 15, 1987.
Decided Nov. 6, 1987.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Loren Fann, appellant pro se.
Jacob Leonard Safron, Special Deputy Attorney General, for Appellees State of North Carolina, Hollowell, Long, Baker and Chaffin. W.T. Culpepper, III, for Appellee Spruill.
Before DONALD RUSSELL, K.K. HALL, and WILKINSON, Circuit Judges.
PER CURIAM:
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Loren Fann, proceeding pro se, filed this action while awaiting trial de novo in state court upon his conviction for speeding 77 miles per hour in a 55 mile per hour zone. In his petition, Fann sought removal of his case to the district court and habeas corpus relief in the form of release from a two hundred dollar appearance bond and an order that the defendants cease further action against Fann.
The district court held that it lacked jurisdiction and therefore remanded the case to state court. The court dismissed Fann's habeas petition, ruling that Fann was not "in custody" as required by 28 U.S.C. Sec. 2254(a) since Fann was free on bond pending trial de novo. Fann appeals the district court's order.
We deny a certificate of probable cause and dismiss the appeal. The order remanding Fann's case to state court is not reviewable by this Court. See 28 U.S.C. Sec. 1447(d). Fann's failure to exhaust state remedies relative to his claims precludes maintenance of a habeas corpus action under 28 U.S.C. Sec. 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1975). Therefore, even assuming Fann was "in custody" for the purposes of 28 U.S.C. Sec. 2254, Fann lacks probable cause to appeal the dismissal of his petition for a writ of habeas corpus.
We dispense with oral argument because the facts and legal contentions are adequately developed in the materials before the Court and argument would not aid the decisional process.
DISMISSED.