56 F.3d 77NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 Jay McKIBBEN, Petitioner-Appellant,v.Larry EMBRY, Respondent-Appellee.
No. 95-1072.
United States Court of Appeals, Tenth Circuit.
May 25, 1995.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.

ORDER AND JUDGMENT1
ANDERSON

1
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);  10th Cir.  R. 34.1.9.  This cause is therefore ordered submitted without oral argument.


2
John Jay McKibben, appearing pro se, appeals from the dismissal without prejudice of his 28 U.S.C. 2254 petition for a writ of habeas corpus, for failure to exhaust his federal claims, and from the denial of his motions for appointment of counsel and for discovery.  The district court denied petitioner's motion for a certificate of probable cause.


3
We GRANT the certificate of probable cause and AFFIRM the dismissal of the petition without prejudice, as well as the denial of petitioner's motions, for substantially the reasons set forth in the magistrate judge's report and recommendation and in the district court's order.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993.  151 F.R.D. 470


