
    John Charles GAUTHIER, Petitioner-Appellant, v. State of OKLAHOMA and Jesse T. Sutter, Jr., Warden, Respondents-Appellees.
    No. 04-5082.
    United States Court of Appeals, Tenth Circuit.
    Nov. 10, 2004.
    John Charles Gauthier, Atoka, OK, pro se.
    Kellye G. Bates, Oklahoma Attorney General, Oklahoma City, OK, for Respondent-Appellee.
    Before EBEL, MURPHY and McCONNELL, Circuit Judges.
   ORDER

EBEL, Circuit Judge.

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.  