                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           NOV 10 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 JOHN CHARLES GAUTHIER,

       Petitioner - Appellant,
 v.                                                     No. 04-5082
                                                 (D.C. No. 04-CV-387-EA(J))
 STATE OF OKLAHOMA and JESSE                            (N.D. Okla.)
 T. SUTTER, JR., Warden,

       Respondents - Appellees.


                                      ORDER


Before EBEL, MURPHY and McCONNELL, Circuit Judges.



      The petition for rehearing filed in this court on November 3, 2004, is

GRANTED. Our previous order in this case, filed on October 22, 2004, is

VACATED. We AFFIRM the district court’s denial of a certificate of

appealability to the petitioner because the petitioner has failed to exhaust his state

remedies. It now appears that the petitioner is in the process of exhausting his

state remedies in the Oklahoma state courts. Thus, the dismissal of his habeas
petition is WITHOUT PREJUDICE.



                                 ENTERED FOR THE COURT



                                 David M. Ebel
                                 Circuit Judge




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