820 F2d 1219 Green v. R Sutton

820 F.2d 1219
Unpublished Disposition

Forrest GREEN, Petitioner-Appellant,
v.
Ernest R. SUTTON; Attorney General of the State of North
Carolina, Respondent- Appellee.

No. 87-6522.

United States Court of Appeals, Fourth Circuit.

Submitted April 16, 1987.
Decided June 4, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before WIDENER, HALL and WILKINSON, Circuit Judges.

Forrest Green, appellant pro se.

Richard Norwood League, Office of the Attorney General of North Carolina, for appellees.

PER CURIAM:


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1

Forrest Green, a North Carolina inmate, appeals the judgment of the district court dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254. Green was convicted of voluntary manslaughter and was sentenced to a fourteen-year term of imprisonment. Subsequent to his appeal to the North Carolina Court of Appeals Green was granted a new sentencing hearing and was sentenced to a twelve-year term of imprisonment. Green appealed the twelve-year sentence to the North Carolina Court of Appeals, which affirmed. The North Carolina Supreme Court denied Green's petition for discretionary review.

2

The claims that Green presented to the North Carolina courts in his second round of appeals were not presented to those courts in federal constitutional terms. The claims merely stated that certain acts of the trial court constituted reversible error. In his federal petition Green presented the same claims that he had previously presented to the state courts. The case was referred to a magistrate for report and recommendation pursuant to 28 U.S.C. Sec. 636(b)(1). The magistrate found that although Green's claims were presented to the state courts they were not presented in federal terms. The state courts, therefore, were not given the opportunity to address the federal constitutional issues presented by the claims. See Anderson v. Harless, 459 U.S. 4 (1982). The magistrate concluded that the claims had not been exhausted and recommended that the petition be dismissed without prejudice. After de novo review of Green's objections to the magistrate's report, the district court adopted the report and properly dismissed the petition. Neither the order adopting the magistrate's report nor the final judgment reflects that the dismissal was without prejudice.

3

Accordingly, we grant a certificate of probable cause, and affirm the dismissal of the petition on the reasoning of the district court. Green v. Sutton, C/A No. 86-774-HC (E.D.N.C., Jan. 14, 1987). On remand, however, the district court will modify its order to dismiss the petition without prejudice. We dispense with oral argument because the dispositive issues have been decided authoritatively.

4

AFFIRMED AS MODIFIED, AND REMANDED.