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        This order and judgment is not binding precedent, except under the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, 

, 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 , 

, 4 (1981). We cannot say the district court

abused its discretion in requiring exhaustion, having found colorable federal

claims. See Lambert v. Blackwell , 

, 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 , 

, 1604 (2000);    Paredes v.

Atherton , No. 00-1016, 

(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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