82 F.3d 409
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Richard Lamar FENSTERMACHER, Petitioner-Appellant,
v.
Ronald J. ANGELONE, Respondent-Appellee.
No. 95-7925.
United States Court of Appeals, Fourth Circuit.
Submitted March 21, 1996.
Decided April 10, 1996.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-95-1165-R)
Richard Lamar Fenstermacher, Appellant Pro Se.
W.D.Va.
DISMISSED.
Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Appellant appeals from the district court's order dismissing without prejudice his 28 U.S.C. § 2254 (1988) petition. The district 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 determine "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 decisional process.
DISMISSED
