NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Ira Gilbert Jones, Jr., appellant pro se.
Donald Charles Gehring, Deputy Attorney General, for appellee.
Before DONALD RUSSELL, WIDENER, and WILKINS, Circuit Judges.
PER CURIAM:
A review of the record and the district court's opinion discloses that an appeal from its order dismissing petitioner's habeas action without prejudice for nonexhaustion would be without merit.* Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, deny a certificate of probable cause to appeal, and dismiss the appeal on the reasoning of the district court. Jones v. Murray, C/A No. 87-398-N (E.D.Va. July 16, 1987).
DISMISSED.
Exhaustion would appear to require that petitioner's allegations that counsel failed to properly advise him of his appeal rights be presented through a state habeas petition either filed directly in the Virginia Supreme Court or appealed to the Virginia Supreme Court, rather than through a motion to file a belated petition for appeal. Moreover, even if petitioner's motion to file a belated petition for appeal were considered adequate exhaustion, the motion was filed and denied after the district court had dismissed petitioner's federal habeas action, and so would not affect our conclusion that the district court properly dismissed the action for failure to exhaust state remedies. Salama v. Virginia, 605 F.2d 1329 (4th Cir.1979) (where exhaustion is completed after dismissal without prejudice of an action by the district court, the Court of Appeals will affirm the dismissal)