Fenstermacher v. Angelone ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7925
RICHARD LAMAR FENSTERMACHER,
Petitioner - Appellant,
versus
RONALD J. ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. James C. Turk, District Judge. (CA-
95-1165-R)
Submitted: March 21, 1996 Decided: April 10, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Richard Lamar Fenstermacher, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order dismissing
without prejudice his 28 U.S.C. § 2254 (1988) petition. The dis-
trict court's dismissal without prejudice is not appealable. See
Domino Sugar Corp. v. Sugar Workers' Local Union 392, 10 F.3d 1064,
1066-67 (4th Cir. 1993). A dismissal without prejudice could be
final if "no amendment [to the petition] could cure defects in the
plaintiff's case." Id. at 1067. In ascertaining whether a dismissal
without prejudice is reviewable in this court, the court must de-
termine "whether the [petitioner] could save his action by merely
amending the [petition]." Id. at 1066-67.
Because Appellant could have amended his petition to assert
some claims, the dismissal order is not appealable. Accordingly,
while we grant Appellant's motions to amend his informal brief, we
deny a certificate of probable cause to appeal and dismiss the
appeal for lack of jurisdiction. 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 deci-
sional process.
DISMISSED
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