UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL BROWN,

Petitioner-Appellant,

v.

WILLIAM A. PERRILL,

Respondent-Appellee.

No. 97-1186

(D.C. No. 96-D-2096)

(District of Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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.

We hold the district court did not err in dismissing without prejudice appellant's habeas corpus petition. We AFFIRM for the reasons stated by the district court in its order adopting the findings and recommendations of the magistrate judge. The motion to proceed without prepayment of fees is GRANTED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge