                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 NOV 29 2001
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 RICHARD LYNN DOPP,

           Petitioner-Appellant,
 v.                                                            No. 01-5074
 JAMES SAFFLE, Director, Oklahoma                        (D.C. No. 99-CV-884-H)
 Department of Corrections,                                    (N.D. Okla.)

           Respondent-Appellee.




                                   ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, 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

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Petitioner Richard Lynn Dopp, an Oklahoma state prisoner appearing pro se, seeks

a certificate of appealability (COA) to challenge the district court's dismissal without


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
prejudice of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the

appeal.

       In 1986, Dopp entered pleas of guilty to two drug-related felonies in state court

and he was sentenced to ten years' imprisonment. Dopp completed his term of

imprisonment and was released from custody. In May 1998, he was convicted in state

court of three additional drug-related felonies and, due in part to his 1986 felonies, he was

sentenced to life imprisonment without parole. His conviction and sentence were

affirmed by the Oklahoma Court of Criminal Appeals (OCCA) in March 2000.

       Dopp filed his federal habeas petition on October 19, 1999, while his direct appeal

was pending. Although somewhat unclear, the petition suggested that Dopp was

challenging both his 1986 convictions, which he alleged were obtained in violation of his

constitutional rights, and his 1998 convictions and sentence, which he alleged were

improperly enhanced by his 1986 convictions. Dopp's amended petition clarified that he

was attacking only his 1998 convictions to the extent they had been enhanced by his 1986

convictions.1 The district court dismissed Dopp's petition without prejudice, concluding

that Dopp had never presented his claim of improper enhancement to the OCCA.

       We agree with the district court that Dopp has failed to exhaust his state court

remedies. See 28 U.S.C. § 2254(b)(1). As noted by the district court, Dopp's claim of



       1
         Based upon our review of the record, any attempt by Dopp to challenge his 1986
convictions would be untimely under 28 U.S.C. § 2244(d)(1).

                                             2
improper enhancement was not asserted in his direct appeal of his 1998 convictions and

Dopp made no attempt to file an application for post-conviction relief.2

       We DENY Dopp’s application for a COA and DISMISS the appeal. The mandate

shall issue forthwith.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




       2
         We question whether Dopp can prevail on his improper enhancement claim since
he has not successfully challenged his 1986 convictions and he did not present his
improper enhancement claim on direct appeal. Nevertheless, out of an abundance of
caution, we conclude that the district court's decision to dismiss the petition without
prejudice was proper.

                                             3
