UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN MORGAN,

Petitioner-Appellant,

v.

TULSA COUNTY, Oklahoma,

Respondent-Appellee.

No. 96-5243

(D.C. No. 96-CV-748-BU)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner filed this action under 28 U.S.C. § 2254, seeking habeas corpus relief. Petitioner was convicted in Oklahoma state court after a retrial; another trial on separate charges was scheduled for January, 1997. The district court dismissed the habeas action, without prejudice, because petitioner had not exhausted his available state remedies by presenting his claims to the Oklahoma Court of Criminal Appeals. We AFFIRM the district court's dismissal without prejudice. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). The application for a certificate of appealability is DENIED, and the portion of the district court's order of September 5, 1996, ordering partial payment of fees is VACATED.1

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge