What is the test for determining the merits of an action for failure to exhaust state remedies?

The parties have conceded that the district court's order dismissing this action for failure to exhaust state remedies should be affirmed. The parties also are in agreement that the district court erred in purporting to decide the merits of this case. We agree. See Guizer v. Estelle, 843 F.2d 371, 372 (9th Cir.1988) (it is error to reach the merits of a petition that contains an unexhausted claim). In the event that the petitioner files a new petition containing the same claim after it is exhausted, the district court must consider its merits de novo.