|HENRY L. RUDOLPH,
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.
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.