NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Calvin McCoy, appellant pro se.
Charles Elford Carpenter, Jr. (Richardson, Plowden, Grier & Howser), for appellees Kilgo and Cook; George Conrad Derrick (Bridges & Orr), for remaining appellees.
Before WIDENER, SPROUSE and CHAPMAN, Circuit Judges.
PER CURIAM:
Calvin McCoy, a South Carolina inmate, seeks to appeal from the district court's order dismissing his pro se complaint, ostensibly filed pursuant to 42 U.S.C. Sec. 1983. The district court determined that the action was properly construed as sounding in habeas, and that McCoy had failed to exhaust state remedies. The district court therefore dismissed the action for failure to exhaust; however, the court's order does not reflect that the dismissal was without prejudice.
We agree with the district court that, as McCoy's complaint attacked the validity of his guilty plea, it was properly construed as a habeas corpus action. See Preiser v. Rodriquez, 411 U.S. 475 (1973); Hamlin v. Warren, 664 F.2d 29 (4th Cir.1981), cert. denied, 455 U.S. 911 (1982). The court properly dismissed the action because McCoy failed to demonstrate exhaustion of state remedies. See 28 U.S.C. Sec. 2254(b). However, the dismissal should be without prejudice. Therefore, pursuant to 28 U.S.C. Sec. 2106, we modify the district court's order to reflect that the dismissal is without prejudice, and affirm the judgment as modified. We dispense with oral argument because the dispositive issue recently has been decided authoritatively.
AFFIRMED AS MODIFIED.