Morgan v. Tulsa County ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN MORGAN,
Petitioner-Appellant,
v. No. 96-5243
(D.C. No. 96-CV-748-BU)
TULSA COUNTY, Oklahoma, (N.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner filed this action under 28 U.S.C. § 2254, seeking habeas corpus
relief. Petitioner was convicted in Oklahoma state court after a retrial; another
trial on separate charges was scheduled for January, 1997. The district court
dismissed the habeas action, without prejudice, because petitioner had not
exhausted his available state remedies by presenting his claims to the Oklahoma
Court of Criminal Appeals. We AFFIRM the district court’s dismissal without
prejudice. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). The application
for a certificate of appealability is DENIED, and the portion of the district court’s
order of September 5, 1996, ordering partial payment of fees is VACATED. 1
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
This court held in United States v. Simmonds, 111 F.3d 737, 743 (10th Cir.
1997), that the Prisoner Litigation Reform Act, which amended 28 U.S.C. § 1915,
does not apply to habeas actions. We, therefore, vacate that portion of the district
court’s order that ordered partial fee payment in accordance with the amended
§ 1915.
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