OpenJurist

19 F3d 1428 Fenstermacher v. R Guillory

19 F.3d 1428

Richard Lamar FENSTERMACHER, Petitioner-Appellant,
v.
Donald R. GUILLORY, Respondent-Appellee.

No. 93-7342.

United States Court of Appeals, Fourth Circuit.

Submitted March 22, 1994.
Decided April 7, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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. James C. Turk, District Judge. (CA-93-905-R)

Richard Lamar Fenstermacher, appellant pro se.

W.D.Va.

VACATED AND REMANDED.

Before PHILLIPS and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

1

Appellant appeals from the district court's order dismissing his 28 U.S.C. Sec. 2254 (1988), petition for failing to exhaust state remedies. We vacate this order and remand.

2

In his Sec. 2254 petition, Appellant alleged that he filed a petition for writ of habeas corpus in the Rockingham County Circuit Court, raising the same issues he presented in his Sec. 2254 petition. Appellant alleged that his petition was denied and that his appeal to the Virginia Supreme Court was denied. The district court dismissed the petition prior to ordering the Respondent to answer; thus, Appellant's allegations are undisputed in the record before us, and it appears that Appellant had exhausted his state remedies. See Va.Code Ann. Sec. 8.01-654 (Michie 1992); Va.Code Ann. Sec. 17-97 (Michie 1988). Respondent's answer and attachments should either confirm or refute Appellant's allegations.

3

Because it does not "plainly appear[ ] from the face of the petition ... that [Appellant] is not entitled to relief in the district court," we find that the district court erred in dismissing Appellant's Sec. 2254 petition. See Rule 4, Rules Governing Section 2254 Cases. We therefore grant a certificate of probable cause to appeal, vacate the district court order, and remand for further proceedings. 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.

4

VACATED AND REMANDED.