
    David Lawrence DIXON, Petitioner-Appellant, v. Howard H. PAINTER, Warden, Respondent-Appellee.
    No. 01-7710.
    United States Court of Appeals, Fourth Circuit.
    Submitted Nov. 29, 2001.
    Decided Dec. 10, 2001.
    David Lawrence Dixon, pro se. Dawn Ellen Warfield, Office of the Attorney General of West Virginia, Charleston, WV, for appellee.
    Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
   PER CURIAM.

David Lawrence Dixon appeals the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2001) because some of Dixon’s claims were not exhausted in state court. We have reviewed the record and the district court’s opinion accepting the recommendation of the magistrate judge and find no reversible error. However, we modify the district court’s order to reflect dismissal without prejudice to Dixon’s ability to refile after he exhausts state remedies. See Evans v. Smith, 220 F.3d 306, 324-25 (4th Cir.2000). Accordingly, we deny a certificate of appealability and dismiss the appeal as so modified. 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.

DISMISSED AS MODIFIED.  