                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 MIKE GARDNER,

          Petitioner-Appellant,

 v.                                                             No. 00-2184
                                                                 (D. N.M.)
 JOE WILLIAMS, Warden, Lea County                        (D.Ct. No. CIV-00-296-JP)
 Correctional Facility; GARY JOHNSON,
 Governor, State of New Mexico; ROBERT
 PERRY, Secretary of Corrections; NEW
 MEXICO CORRECTIONS DEPARTMENT,
 State of New Mexico; WACKENHUT
 CORRECTIONS CORPORATION, a Florida
 corporation; LEA COUNTY, NEW MEXICO;
 ATTORNEY GENERAL FOR THE STATE OF
 NEW MEXICO,

          Respondents - Appellees.
                         ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined




      *
          This order and judgment is not binding precedent except under the doctrines of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.
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.



      Appellant Mike Gardner, a state inmate appearing pro se, appeals the

district court’s decision denying his habeas corpus petition filed under 28 U.S.C.

§ 2241 for failure to exhaust existing state remedies. The facts and issues in this

case are identical to those in Rael v. Williams, WL 1051845 (10th Cir. July 31,

2000), petition for cert. filed, (U.S. Oct. 10, 2000) (No. 00-6587). Thus, our

decision is governed by this court’s analysis and conclusions therein.



      Accordingly, we grant Mr. Gardner a certificate of appealability and

AFFIRM the judgment of the district court, as modified, to dismiss the claim

cognizable under 28 U.S.C. § 2241 with prejudice; all other claims contained in

Mr. Gardner’s petition are dismissed without prejudice.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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