103 F.3d 144
97 CJ C.A.R. 27
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
John Lawrence DUBOIS, Petitioner-Appellant,v.Edward EVANS, Warden;  Attorney General of the State ofOklahoma;  and Oklahoma Court of Appeals, OklahomaCourt of Criminal Appeals, Respondents-Appellees.
No. 96-6143.
United States Court of Appeals, Tenth Circuit.
Dec. 17, 1996.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**
BALDOCK, Circuit Judge..
Petitioner-Appellant John Dubois asserts in his petition for habeas corpus that he was convicted of duplicative counts of his indictment in violation of his federal double jeopardy rights.  The district court denied the petition, and Petitioner then applied to this court for a certificate of appealability pursuant to 28 U.S.C. § 2253.  We granted Petitioner's application and ordered Respondents to file a brief because, on its face, the indictment did appear to violate Petitioner's constitutional rights.
Respondents' brief filed with this court includes various attachments which were apparently not presented to the district court.  As it is not this Court's function to take evidence and find facts, we now remand this matter to the district court so that it may further consider the petition in light of the parties' newly offered evidence.
REVERSED AND REMANDED.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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


**
 After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument.  See Fed.  R.App. P. 34(f);  10th Cir. 34.1.9.  The case is therefore ordered submitted without oral argument


