                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 25 1999
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 JERRY HOBSON KING,

           Petitioner - Appellant,
 vs.                                                      No. 98-7163
                                                    (D.C. No. CV-96-682-S)
 RON WARD; ATTORNEY                                       (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Petitioner-Appellant Jerry Hobson King, an inmate appearing pro se, seeks

to appeal the district court's dismissal of his petition for a writ of habeas corpus

filed pursuant to 28 U.S.C. § 2254. The district court, adopting the magistrate

judge's Report and Recommendation, dismissed Mr. King's petition because he


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
was not “in custody” for purposes of reviewing his conviction and because, in the

alternative, he has failed to exhaust state court remedies are required by 28 U.S.C.

§ 2254(b)(1)(A). Mr. King appeals and requests a certificate of appealability. We

deny Mr. King's request for a COA and dismiss the appeal.          We do not need to

reach the question of whether Mr. King is “in custody.” Under 28 U.S.C. §

2254(b)(1)(A), a habeas corpus petitioner generally must exhaust state court

remedies prior to filing such a petition with the federal court. A state prisoner

bringing a federal habeas corpus action bears the burden of showing that he has

exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398

(10th Cir. 1992). The state will not waive exhaustion, nor has Mr. King

demonstrated it. Therefore, we DENY Mr. King’s request for a certificate of

appealability and DISMISS his appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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