                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 21 2000

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 HENRY L. RUDOLPH,

          Petitioner-Appellant,
                                                       No. 99-4207
 v.                                                (D.C. No. 99-CV-371)
                                                          (Utah)
 HANK GALETKA,

          Respondent-Appellee.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The 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.
      Petitioner Henry Rudolph appeals the dismissal of his petition for habeas

corpus under 28 U.S.C. § 2254, and requests a certificate of appealability from

this court. We grant the certificate and reverse and remand.

      Mr. Rudolph was convicted of aggravated burglary and violation of a

protective order in Utah district court. After his convictions were affirmed by the

Utah Supreme Court on direct appeal, see State v. Rudolph, 970 P.2d 1221 (Utah

1998), he filed the present habeas petition alleging twelve constitutional

violations. The magistrate judge concluded that five of these claims had not been

presented to the state court and that under Rose v. Lundy, 455 U.S. 509, 510

(1982), the mixed petition “must be dismissed without prejudice.” App., vol. I,

Report and Recommendation at 2. The district court adopted the

recommendation, reiterating that the petition “must” be dismissed. Id., Order

filed Aug. 10, 1999, at 1. The district court dismissed Mr. Rudolph’s petition

without prejudice, instructing him that he could refile his federal petition

including only his exhausted claims, or he could seek review of the unexhausted

claims in state court under Utah R. Civ. P. 65B(b). Mr. Rudolph appeals this

decision, arguing that the unexhausted claims should be addressed on the merits

because he only failed to bring those claims on direct appeal due to the

ineffective assistance of his appellate counsel.




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      Both the district court and the magistrate judge relied on Rose for the

proposition that petitions including exhausted and unexhausted claims for relief

must be dismissed without prejudice. See Rose, 455 U.S. at 520 (holding district

court should dismiss mixed habeas petitions which raise claims unexhausted in

state court). Rose was superseded by statute, however, upon the passage of the

Anti-Effective Death Penalty and Anti-terrorism Act (AEDPA), codified in

relevant part at 28 U.S.C. § 2254(b)(2). Section 2254(b)(2) states that “[a]n

application for a writ of habeas corpus may be denied on the merits

notwithstanding the failure of the applicant to exhaust the remedies available in

the courts of the State.” This section allows federal district courts entertaining

habeas petitions which contain unexhausted claims to address those claims if they

can be decided on their merits against the petitioner. 1

      This court has held that section 2254(b)(2) is a codification of the holding

in Granberry v. Greer, 481 U.S. 129 (1987), under which a federal court that is

“‘convinced that the petition has no merit’” may deny the petition on the merits

rather than apply the exhaustion rule. Hoxsie v. Kerby, 108 F.3d 1239, 1242-43

(10th Cir. 1997) (quoting Granberry, 481 U.S. at 134). Similarly, the Supreme

Court has indicated that when an unexhausted claim is “easily resolvable against


1
 Mr. Rudolph filed this § 2254 petition in the United States District Court in
Utah on May 27, 1999, after the April 24, 1996 effective date of AEDPA. Thus,
we apply the provisions of § 2254 as amended by AEDPA.

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the habeas petitioner,” the district court may apply section 2254(b)(2) and deny

the claim on the merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

Thus, under section 2254(b)(2), where the district court is convinced the

unexhausted claim is without merit, or that the issue is easily resolvable against

the defendant, the court may reach the merits of the claim rather than dismiss the

petition.

      Neither the magistrate judge nor the district court indicated an awareness of

the district court’s discretion under section 2254(b)(2) to determine whether the

unexhausted claims are easily resolvable against Mr. Rudolph and, if so, to

address the exhausted claims without the necessity of dismissing the petition

under Rose v. Lundy.

      Accordingly, we GRANT Mr. Rudolph’s certificate of appealability,

REVERSE the order of the district court, and REMAND for further

consideration.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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