                              UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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