103 F.3d 117
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Berlinda L. CRADDOCK, a/k/a Jackie Paige, Petitioner-Appellant,
v.
Ronald J. ANGELONE, Director of the Virginia Department of
Corrections, Respondent-Appellee.
No. 96-6872.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 21, 1996.
Decided Dec. 4, 1996.
Berlinda L. Craddock, Appellant Pro Se. Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, Virginia, for Appellee.
E.D.Va.
DISMISSED.
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
PER CURIAM:
Appellant seeks to appeal from the district court's order dismissing without prejudice her petition filed pursuant to 28 U.S.C. § 2254 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. 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 her petition to raise only the exhausted claims and thereby cured the defects in her petition, the dismissal order is not appealable. Accordingly, we deny a certificate of appealability 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.
