846 F.2d 71
Unpublished Disposition
Watson JOHNSON, Jr., Petitioner-Appellant,
v.
William D. LEEKE, Commissioner, SC Dept. of Corrections,
Kenneth D. McKellar, Warden, Kirkland Correctional
Inst., Respondents-Appellees.
No. 87-6686.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 21, 1988.
Decided April 14, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Watson Johnson, Jr., appellant pro se.
Frank Louis Valenta, Jr., Assistant Attorney General, for appellees.
Before CHAPMAN, WILKINSON, and WILKINS, Circuit Judges.
PER CURIAM:
Watson Johnson, Jr., a South Carolina inmate, seeks to appeal the district court's dismissal of his habeas petition for failure to exhaust state remedies as required by 28 U.S.C. Sec. 2254(b) and (c). Upon review of the record, we find that the district court correctly determined that Johnson had not afforded the state courts an opportunity to address his claim that his attorney was ineffective in failing to object to the malice instruction. We note, in addition, that Johnson withdrew his claim that he was discriminated against because of his sex and mental cruelty when he filed his amended state post-conviction application, and therefore has not exhausted that claim. We affirm the district court's dismissal of the action on the basis of failure to exhaust state remedies. We grant a certificate of probable cause and modify the judgment pursuant to 28 U.S.C. Sec. 2106, however, to reflect that the dismissal is without prejudice. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
AFFIRMED AS MODIFIED.