ORDER

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.