841 F. 2d 1122 - Benge v. J Johnson
841 F2d 1122 Benge v. J Johnson
841 F.2d 1122
Unpublished Disposition
Marvin Timothy BENGE, Petitioner-Appellant,
v.
James J. JOHNSON; Attorney General of Virginia,
Respondents-Appellees.
No. 87-6724.
United States Court of Appeals, Fourth Circuit.
Submitted: Jan. 29, 1988.
Decided: Feb. 23, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Marvin Timothy Benge, appellant pro se.
Before DONALD RUSSELL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
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Marvin Timothy Benge, a Virginia inmate, filed a habeas petition pursuant to 28 U.S.C. Sec. 2254 in which he alleged the following:
(1) the state court unconstitutionally denied him a continuance;
(2) the state court erred by refusing to admit certain evidence;
(3) he was denied effective assistance of counsel and a fair trial; and
(4) Virginia's parole statute discriminates against people with prior Virginia convictions as opposed to people with prior out-of-state convictions.
Benge stated in his petition that he had exhausted issues three and four in two separate state habeas corpus petitions.
The district court dismissed Benge's petition without prejudice because Benge had not demonstrated that he had exhausted his first and second issues.
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Benge has filed his informal brief on appeal, and he insists that he has exhausted all of his claims. He states that he raised the first and second issues of the instant petition on direct appeal to the Virginia Supreme Court.
In light of Benge's informal brief, we grant a certificate of probable cause to appeal, vacate the judgment of dismissal, and remand this case to the district court for further review of the exhaustion issue. As the dispositive issues have recently been decided authoritatively, we dispense with oral argument.
VACATED AND REMANDED.