                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               APR 3 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 CONRAD J. BRAUN,

          Petitioner-Appellant,

               v.                                          No. 97-3237
                                                     (D.C. No. 97-3085-DES)
 CARLA STOVALL, Attorney General                            (D. Kan.)
 of Kansas,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Petitioner Conrad J. Braun, appearing pro se, appeals the district court’s

dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254.



      *
          This order and judgment is not binding precedent, except under the doctrines of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.
      Braun sought review of state court convictions, indicating his motion for

post-conviction relief under Kan. Stat. Ann. § 60-1507 was dismissed in state

court on jurisdictional grounds. His appeal to the Kansas Court of Appeals from

that dismissal was pending at the time he brought his § 2254 action. On July 2,

1997, the federal district court dismissed the § 2254 action without prejudice to

allow Braun to fully and properly exhaust state court remedies. 1

      Braun seeks a certificate of appealability and permission to proceed in

forma pauperis on appeal. The district court denied a certificate of appealability

and denied leave to proceed in forma pauperis on appeal, finding Braun’s appeal

was frivolous and not taken in good faith. An appeal cannot be taken to this court

in a § 2254 proceeding unless a petitioner has obtained a certificate of

appealability by making a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253. Our review of Braun’s opening brief and the entire

court record does not disclose any showing of the denial of a constitutional right.

Clearly, Braun had not exhausted his state court remedies when the district court

entered its order of dismissal.

      Braun’s request for a certificate of appealability and his motion to proceed

on appeal in forma pauperis are DENIED. The appeal is DISMISSED. The


      1
        Braun’s appeal to the Kansas Court of Appeals was decided on November 7,
1997, and his subsequent petition for review to the Kansas Supreme Court was denied on
December 23, 1997.

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mandate shall issue forthwith.

                                       Entered for the Court

                                       Mary Beck Briscoe
                                       Circuit Judge




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