                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 01-7868



ROBERT LEE ELMORE,

                                           Petitioner - Appellant,

          versus


BARNEY LLOYD, Warden of Tyger River Correc-
tional Institution; CHARLES M. CONDON, Attor-
ney General of the State of South Carolina,

                                          Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. Dennis W. Shedd, District Judge.
(CA-01-956-9-19RB)


Submitted:   February 14, 2002         Decided:     February 27, 2002


Before WIDENER, LUTTIG, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Robert Lee Elmore, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Robert Lee Elmore seeks to appeal from the district court’s

order adopting the report and recommendation of the magistrate

judge and dismissing his petition filed under 28 U.S.C.A. § 2254

(West 1994 & Supp. 2001) without prejudice because he failed to

exhaust state court remedies. Because Elmore can exhaust his state

court remedies and re-file his petition, his appeal of the dis-

missal without prejudice is interlocutory and not subject to ap-

pellate review under Domino Sugar Corp. v. Sugar Workers Local 392,

10 F.3d 1064, 1066-67 (4th Cir. 1993).   Accordingly, we deny a cer-

tificate of appealability and dismiss the appeal. We dispense with

oral argument because the facts and legal contentions are adequate-

ly presented in the materials before the court and argument would

not aid the decisional process.




                                                          DISMISSED




                                  2
