Craddock v. Angelone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-6872
BERLINDA L. CRADDOCK, a/k/a Jackie Paige,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Henry C. Morgan, Jr., District
Judge. (CA-95-448-2)
Submitted: November 21, 1996 Decided: December 4, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Berlinda L. Craddock, Appellant Pro Se. Linwood Theodore Wells,
Jr., Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal from the district court's order dis-
missing 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 plain-
tiff'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
2