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| MIKE GARDNER,
v.
JOE WILLIAMS, Warden, Lea County
Correctional Facility; |
|
Before BRORBY, KELLY, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Mike Gardner, a state inmate appearing pro se, appeals the district court's decision denying his habeas corpus petition filed under 28 U.S.C. § 2241 for failure to exhaust existing state remedies. The facts and issues in this case are identical to those in Rael v. Williams, WL 1051845 (10th Cir. July 31, 2000), petition for cert. filed, (U.S. Oct. 10, 2000) (No. 00-6587). Thus, our decision is governed by this court's analysis and conclusions therein.
Accordingly, we grant Mr. Gardner a certificate of appealability and AFFIRM the judgment of the district court, as modified, to dismiss the claim cognizable under 28 U.S.C. § 2241 with prejudice; all other claims contained in Mr. Gardner's petition are dismissed without prejudice.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
*. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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