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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