UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY DAVID HARDIN,

Petitioner - Appellant,

vs.

R. MICHAEL CODY, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees.

No. 98-7064

(	D.C. No. 95-CV-94-B)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.**

Mr. Hardin, an inmate appearing pro se, appeals from the district court's dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254. The magistrate judge, whose findings and recommendations were

adopted by the district court, found that Mr. Hardin had failed to exhaust available state court remedies as required by § 2254(b). The district court also denied a certificate of appealability.

Raising the same issues he raised in the district court, Mr. Hardin argues that this court should grant a certificate of appealability because the state trial court impermissibly used two prior felony convictions to enhance the sentence which he is currently serving. Mr. Hardin was convicted and sentenced on May 15, 1992, and his direct appeal was dismissed by the Oklahoma Court of Criminal Appeals for failure to prosecute on May 3, 1994. He filed his federal habeas petition on March 1, 1995, and subsequently filed a post-conviction application for a direct appeal out of time with the state district court on May 6, 1996. This application was granted, and Mr. Hardin raised nine issues in his appeal. However, he failed to challenge the use of the prior convictions to enhance his sentence. His conviction and sentence were affirmed by the Court of Criminal Appeals on April 17, 1997. Mr. Hardin has yet to pursue state post-conviction remedies.

Given these facts, we agree with the recommendation of the magistrate, adopted by the district court, that Mr. Hardin's petition be dismissed without prejudice for failure to exhaust. See 28 U.S.C. § 2254(b). We DENY his request

for a certificate of appealability and DISMISS his appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge