UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WAYNE M. PARKER,

Petitioner-Appellant,

v.

MICHAEL A. LANSING,

Respondent-Appellee.

No. 98-3353

(D.C. 98-CV-3325-RDR)

(District of Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner Wayne M. Parker is an inmate in the United States Disciplinary Barracks, Fort Leavenworth, Kansas. He has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality of his incarceration. As the district court correctly determined, however, Mr. Parker's petition reveals that his direct appeal is pending before the United States Army Court of Criminal Appeals. See Rec. doc. 1, at 3. "Petitioner must exhaust his military remedies before filing a civil habeas petition." Lundy v. Zelez, 908 F.2d 593, 594 (10th Cir. 1990). Therefore, we AFFIRM the district court's dismissal of Mr. Parker's petition for habeas corpus without prejudice.

Entered for the Court,

Robert H. Henry

Circuit Judge