David S. JOHNSON, Petitioner-Appellant, v. Jon GALLEY, Warden; Attorney General for the State of Maryland, Respondents-Appellees, 33 F. App'x 131

PER CURIAM. David S. Johnson seeks to appeal from the district court’s order 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 Johnson can exhaust his state court remedies and re-file his petition, his appeal is interlocutory and not subject to appellate review under Domino Sugar Corp. v. Sugar Workers Local 392, 10 F.3d 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.