F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 6 1997 TENTH CIRCUIT PATRICK FISHER Clerk

DAVID ARNOLD DEFOE,

Petitioner - Appellant, No. 97-4096 v. (D.C. No. 97-CV-130-B) (District of Utah) STATE OF UTAH,

Respondent - Appellee.

ORDER AND JUDGMENT *

Before BALDOCK, MCKAY and LUCERO, Circuit Judges.

Upon a review of the Application for Certificate of Appealability, and

materials submitted by the petitioner in support thereof, it does not appear that

petitioner has exhausted his state remedies. Accordingly, his Application for

Certificate of Appealability is DENIED without prejudice to renewal when

exhaustion has occurred in accordance with 28 U.S.C. § 2254 (b) and (c) and

Picard v. Connor, 404 U.S. 270 (1971).

* The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

-2-