Robert Lee ELMORE, Petitioner-Appellant, v. Barney LLOYD, Warden of Tyger River Correctional Institution; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees, 30 F. App'x 98

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 dismissal without prejudice is interlocutory and not subject to appellate review under Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.8d 1064, 1066-67 (4th Cir.1993).

Accordingly, we deny a certificate of appealability 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.