Whether a federal appellate court can deny making a merits determination for a petitioner's failure to exhaust state remedies, when the petitioner's alleged failure to exhaust is determined only upon a still pending state court appeal?

QUESTIONS PRESENTED | Whether a federal appellate court can deny making a merits determination for a petitioner’s failure to exhaust state remedies, when the petitioner’s alleged failure to exhaust is determined only upon a still pending state court appeal? In this circumstance, if an appellate court—in conflict with the district courts finding— denies the appeal premised upon a premature application only, it would necessarily ' disqualify the claim from being raised in any other court, at any other time, preventing petitioner an opportunity to file a second habeas petition once the claim is exhausted. The ultimate question that needs to be resolved is, “Whether a federal appellate court can hold a petition on appeal in abeyance until the pending state ; . court appeal is determined in order to prevent the claim being forever . ' disqualified?” In this case the Tenth Circuit ultimately denied granting a Rule 60(b)(6) motion to re-open the judgment, even after the pending state court appeal was finally resolved, resulting in petitioners claims being forever disqualified from being heard in any other court, at any other time. PARTIES The petitioner is Jason Brooks, a prisoner now being held at the Sterling Correctional Facility in Canon City, Colorado. The respondents are Cynthia Coffman, attorney general of the State of Colorado, and Lou Archuletta, the Warden of the Fremont Correctional Facility. i