F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
HENRY L. RUDOLPH,
Petitioner - Appellant,
vs. No. 00-4099
(D.C. No. 99-CV-371)
HANK GALETKA, (D. Utah)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges. **
Mr. Rudolph, an inmate appearing pro se, seeks to appeal the district
court’s remand order, again dismissing his habeas petition without prejudice for
failure to exhaust all of his federal claims in state court. We had remanded the
case to the district court for consideration of 28 U.S.C. 2254(b)(2), which allows
a federal district court to deny, but not grant, unexhausted habeas claims, as an
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
alternative to the dismissal of a mixed petition . See Rudolph v. Galetka , No. 99-
4207, 2000 WL 293706, at *2 (10th Cir. Mar. 21, 2000). On remand, the district
court concluded that petitioner raised colorable federal claims that were
unexhausted and were not easily resolvable, at least not without a review of trial
and appellate court records. See I R. doc. 27 at 2; doc. 25 at 6.
On appeal, Mr. Rudolph urges the merits of his claims and argues that
exhaustion would be futile and that obvious structural errors suggest dispensing
with the exhaustion requirement. Mr. Rudolph’s conclusory and somewhat
inflammatory statements do not demonstrate that exhaustion should be excused.
See Duckworth v. Serrano , 454 U.S. 1, 4 (1981). We cannot say the district court
abused its discretion in requiring exhaustion, having found colorable federal
claims. See Lambert v. Blackwell , 134 F.3d 506, 515 (3rd Cir. 1997).
In view of the remand inviting the district court to consider 28 U.S.C.
§ 2254(b)(2) and the same disposition on remand, we GRANT a certificate of
appealability, see Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000); Paredes v.
Atherton , No. 00-1016, 2000 WL 1289022 (10th Cir. Aug. 28, 2000), and
AFFIRM the district court’s dismissal without prejudice. All other pending
motions are denied.
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Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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