64 F.3d 669
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Preston E. JONES, Petitioner-Appellant,v.Robert T. STEPHAN, Attorney General, David R. McKune,Defendants-Appellees.
No. 95-3104.(D.C. No. 94-3443 DES)
United States Court of Appeals, Tenth Circuit.
Aug. 23, 1995.

Before TACHA, LOGAN and KELLY, Circuit Judges.2

ORDER AND JUDGMENT1

1
Mr. Jones, an inmate appearing pro se, seeks to proceed in forma pauperis, obtain a certificate of probable cause, and appeal from the district court's dismissal of his habeas petition, 28 U.S.C. 2254, without prejudice.  The district court dismissed the petition while state exhaustion occurs.  See Rose v. Lundy, 455 U.S. 509, 522 (1982).  The district court did not err.


2
We GRANT Mr. Jones' Motion for Leave to Proceed Without Prepayment of Fees or Costs, GRANT his Application for a Certificate of Probable Cause and AFFIRM the district court's judgment, I R. doc. 15.  The mandate shall issue forthwith.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order.  151 F.R.D. 470 (10th Cir.1993)


2
 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 cause therefore is ordered submitted without oral argument


