                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 13 1999
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JIMMY DAVID HARDIN,

           Petitioner - Appellant,
 vs.                                                    No. 98-7064
                                                   (D.C. No. 95-CV-94-B)
 R. MICHAEL CODY, Warden;                               (E.D. Okla.)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Hardin, an inmate appearing pro se, appeals from the district court’s

dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254. The magistrate judge, whose findings and recommendations were




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
adopted by the district court, found that Mr. Hardin had failed to exhaust

available state court remedies as required by § 2254(b). The district court also

denied a certificate of appealability.

      Raising the same issues he raised in the district court, Mr. Hardin argues

that this court should grant a certificate of appealability because the state trial

court impermissibly used two prior felony convictions to enhance the sentence

which he is currently serving. Mr. Hardin was convicted and sentenced on May

15, 1992, and his direct appeal was dismissed by the Oklahoma Court of Criminal

Appeals for failure to prosecute on May 3, 1994. He filed his federal habeas

petition on March 1, 1995, and subsequently filed a post-conviction application

for a direct appeal out of time with the state district court on May 6, 1996. This

application was granted, and Mr. Hardin raised nine issues in his appeal.

However, he failed to challenge the use of the prior convictions to enhance his

sentence. His conviction and sentence were affirmed by the Court of Criminal

Appeals on April 17, 1997. Mr. Hardin has yet to pursue state post-conviction

remedies.

      Given these facts, we agree with the recommendation of the magistrate,

adopted by the district court, that Mr. Hardin’s petition be dismissed without

prejudice for failure to exhaust. See 28 U.S.C. § 2254(b). We DENY his request




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for a certificate of appealability and DISMISS his appeal.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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