UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID ARNOLD DEFOE,

Petitioner - Appellant,

v.

STATE OF UTAH,

Respondent - Appellee.	No. 97-4096

(D.C. No. 97-CV-130-B)

(District of Utah)

ORDER AND JUDGMENT*

Before BALDOCK, MCKAY and LUCERO, Circuit Judges.

Upon a review of the Application for Certificate of Appealability, and materials submitted by the petitioner in support thereof, it does not appear that petitioner has exhausted his state remedies. Accordingly, his Application for Certificate of Appealability is DENIED without prejudice to renewal when exhaustion has occurred in accordance with 28 U.S.C. § 2254 (b) and (c) and Picard v. Connor, 404 U.S. 270 (1971).

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge