32 F3d 563 Wolford v. Duncil

32 F.3d 563

Steven R. WOLFORD, Petitioner Appellant,
v.
William DUNCIL, Warden, Respondent Appellee.

No. 94-6356.

United States Court of Appeals, Fourth Circuit.

Submitted: July 19, 1994.
Decided: August 8, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, District Judge. (CA-94-33-E)

Steven R. Wolford, Appellant Pro Se.

Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.

PER CURIAM


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1

Steven R. Wolford appeals from a district court order dismissing without prejudice his 28 U.S.C. Sec. 2254 (1988) petition. We dismiss the appeal as interlocutory.

2

Dismissals without prejudice are normally interlocutory and, therefore, not appealable. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir.1993). Such is the case here. The district court properly dismissed Wolford's petition because it appeared to contain exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). Wolford may either exhaust all the claims in the petition and then refile his petition, or he may amend his petition by deleting any unexhausted claims and resubmitting the amended petition to the district court.* Id. Thus, while the district court order here might be read to allow resubmission only after exhaustion, it appears that the order merely did not specifically enumerate all of Wolford's options. Because the petition may be saved by amendment, the district court order is not final under Domino Sugar.

3

We deny a certificate of probable cause the appeal and dismiss the appeal. 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

*

Wolford also may resubmit his petition with proof that all the claims are, in fact, exhausted