UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES E. PATRICK,

Petitioner - Appellant,

vs.

L.E. BRUCE, Ellsworth Correctional Facility and CHARLES SIMMONS, Secretary of Corrections,

Respondents - Appellees.

No. 97-3161

(	D.C. No. 97-CV-3208)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

Mr. Patrick, an inmate appearing pro se and in forma pauperis, appeals from the dismissal without prejudice of his habeas petition, 28 U.S.C. § 2254,1 for failure to exhaust state remedies. The district court also denied a certificate of appealability, see 28 U.S.C. § 2253(c)(2). He contends that the Defendants are required to convert his indeterminate sentence to one under the Kansas Sentencing Guidelines.

A notice of appeal was filed along with his initial pleading, bringing into question our jurisdiction. While a timely filed motion for reconsideration was pending in the district court, however, Mr. Patrick filed an amended notice of appeal and also filed a brief in this court. Thus, we have jurisdiction. See Fed. R. App. P. 4(a)(4)(C); Smith v. Barry, 502 U.S. 244, 248-49 (1992) (appellate brief may be the functional equivalent of a notice of appeal).

The district court was correct in determining that Mr. Patrick must exhaust his state remedies. See 28 U.S.C. § 2254(b)(1)(A). We DENY Mr. Patrick's motion for issuance of a certificate of appealability and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge