                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 5 1998
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 STEVEN AYALA,

          Petitioner - Appellant,
 v.                                                      No. 98-1192
                                                      (D.C. No. 98-D-67)
 ZAVARAS, Executive Director; GAIL                        (D. Colo.)
 NORTON, Attorney General of the
 State of Colorado,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


      Petitioner-Appellant Steven Ayala, a pro se litigant, seeks to appeal the

district court’s dismissal without prejudice of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254(b)(1). He has filed a motion for leave to

proceed on appeal without prepayment of costs or fees and an application for a


      *
        This order and judgment is not binding precedent, except under the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. 34.1.9. The cause is therefore ordered submitted without oral argument.
certificate of appealability. He has also requested court-apppointed counsel and

seeks to supplement his pleadings.

      We agree with the district court that Mr. Ayala has not demonstrated that he

has exhausted state court remedies regarding his claims. See 28 U.S.C. §

2254(b)(1)(A); see also Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997).

Nor has he demonstrated futility. See 28 U.S.C. § 2254(b)(1)(B)(i) & (ii); see also

Wallace v. Cody, 951 F.2d 1170, 1171 (10th Cir. 1991). Accordingly, all pending

requests for relief, including his motion to proceed in forma pauperis and his

request for court-appointed counsel are DENIED, and the appeal is DISMISSED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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