                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 6 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RICHARD WALTER JOHNSON,

                Petitioner-Appellant,

    v.                                                   No. 98-1101
                                                      (D.C. No. 98-D-27)
    GALE A. NORTON, PETER                                 (D. Colo.)
    WARREN BOOTH, GILBERT
    MARTINEZ, JOHN WESLEY
    ANDERSON, and ATTORNEY
    GENERAL FOR THE STATE
    OF COLORADO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and TACHA , 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Petitioner Richard Walter Johnson applies for a certificate of appealability

so that he might appeal the district court’s dismissal of his petition for writ of

habeas corpus brought pursuant to 28 U.S.C. § 2254. He further requests

permission to proceed on appeal without prepayment of costs or fees. For the

reasons stated below, we deny the application for a certificate of appealability

and dismiss the appeal. We further deny permission to proceed on appeal without

prepayment of costs or fees.

       Mr. Johnson is incarcerated in the El Paso County Jail in Colorado Springs,

Colorado. It appears from his § 2254 petition that his conviction was affirmed by

the Colorado Court of Appeals but that Mr. Johnson did not further appeal that

judgment to the Colorado Supreme Court. He did file for state post-conviction

relief, but again failed to appeal the denial of that petition to the highest state

court having jurisdiction over it. For these reasons, the district court denied

Mr. Johnson’s petition for failure to exhaust state remedies.    See Rose v. Lundy ,

455 U.S. 509, 515 (1982);    see also 28 U.S.C. § 2254(b)(1).

       We review the legal basis for the district court’s dismissal of Mr. Johnson’s

§ 2254 petition de novo.    See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.

1998). After review of the materials submitted by Mr. Johnson and the record in


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this case, we find no fault with the order of the district court. Mr. Johnson’s

application for a certificate of appealability is DENIED because he has failed to

make a substantial showing of the denial of a constitutional right.    See 28 U.S.C.

§ 2253(c)(2). His requests to proceed on appeal without prepayment of costs or

fees and for rehearing and release pending appeal are similarly DENIED.

       This appeal is DISMISSED. The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        James E. Barrett
                                                        Senior Circuit Judge




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