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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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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