911 F.2d 721
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Jake CHISOLM, Petitioner-Appellant,
v.
STATE OF SOUTH CAROLINA, T. Travis Medlock, Attorney General
of the State of South Carolina, Parker Evatt, Commissioner,
South Carolina Department of Corrections, and the Solicitor
of Beaufort County, Respondents-Appellees.
No. 90-7049.
United States Court of Appeals, Fourth Circuit.
Submitted July 9, 1990.
Decided July 19, 1990.
Rehearing and Rehearing In Banc Denied Aug. 20, 1990.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Joe F. Anderson, Jr., District Judge. (C/A No. 89-2803-3)
Jake Chisolm, appellant pro se.
Donald John Zelenka, Chief Deputy Attorney General, Columbia, S.C., for appellees.
D.S.C.
DISMISSED.
Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Jake Chisolm appeals from the district court's order which dismissed his 28 U.S.C. Sec. 2254 action for lack of prosecution. The district court's dismissal was based on Chisolm's failure, despite two court orders, to submit evidence of exhaustion of his state court remedies after respondents moved to dismiss the petition on the ground of nonexhaustion.
We note that Chisolm attempted to file a response to the motion to dismiss prior to the first court order for him to respond. Although the response bears a stamp indicating it was received by the clerk's office, it appears that it may have been returned to Chisolm without being filed. Chisolm then made no further response to the court orders. Even if Chisolm's response were to be viewed as compliance with the district court's orders, the response establishes that he has not exhausted his state remedies and dismissal of the complaint without prejudice was proper.* Accordingly, we deny a certificate of probable cause and dismiss the 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.
DISMISSED.
Although the district court order states that its dismissal was with prejudice, the judgment correctly reflects that the action was dismissed without prejudice
