                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 NOV 26 1997
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk


 SAMUEL BROWN,

          Petitioner-Appellant,
                                                            No. 97-1186
 v.
                                                        (D.C. No. 96-D-2096)
                                                        (District of Colorado)
 WILLIAM A. PERRILL,

          Respondent-Appellee.




                                  ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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. The case is therefore ordered

submitted without oral argument.




      *
         This order and judgment is not binding precedent, except under the doctrines of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.
      We hold the district court did not err in dismissing without prejudice appellant’s

habeas corpus petition. We AFFIRM for the reasons stated by the district court in its

order adopting the findings and recommendations of the magistrate judge. The motion to

proceed without prepayment of fees is GRANTED. The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT


                                         John C. Porfilio
                                         Circuit Judge




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