UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7331
JOHN E. PIERCE, JR.,
Petitioner - Appellant,
versus
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-98-534)
Submitted: January 5, 1999 Decided: January 26, 1999
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John E. Pierce, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John E. Pierce, Jr., appeals from the district court’s order
dismissing his § 2254 petition. The district court dismissed the
petition without prejudice because Pierce failed to demonstrate
that he had exhausted his available state court remedies. This
Court may exercise jurisdiction only over final orders. See 28
U.S.C.A. § 1291 (West 1993). A dismissal without prejudice is
final if “no amendment [to the petition] could cure the defects in
the [petitioner’s] case.” Domino Sugar Corp. v. Sugar Workers
Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993). Thus, in
ascertaining whether a dismissal without prejudice is reviewable in
this Court, we must determine “whether the [petitioner] could save
his action by merely amending the [petition].” Id. at 1066-67.
Because Pierce can save this action by amending his petition to
show that he has exhausted his state remedies, the district court’s
order is not an appealable final order. 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
2