Justia Federal District Court Opinions

Marvin Nathaniel Demby appeals from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). The district court dismissed Demby's petition without prejudice after determining that Claim 3 contained both exhausted and unexhausted subclaims. Although we agree with the district court that some of the claims stated in Demby's initial petition are unexhausted and that dismissal would normally be warranted under Rose v. Lundy, 455 U.S. 509 (1982), Demby filed a timely request to withdraw his unexhausted claims which the district court apparently overlooked. We therefore reverse the district court's decision and remand this case for consideration of the merits of Demby's remaining claims. 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.

REVERSED AND REMANDED.