Whaley

Opinion by Judge REINHARDT; Dissent by Judge HALL.

Leslie Whaley has shuttled in and out of habeas corpus and parole proceedings since 1993. In one of the most recent iterations of this procedure, the state represented in an Oregon appellate court proceeding that his constitutional challenge to his parole conditions was moot under Oregon law because he had been removed from parole and reincarcerated. Although the parole revocation was based on the very conditions that he contends are unconstitutional, Whaley did not challenge that assertion, and the Oregon court, accordingly, dismissed the appeal. The state now argues, citing Oregon case law, that Whaley’s constitutional claims were not moot. Therefore, it asserts, he was obligated to appeal the state court’s dismissal to the Oregon Supreme Court, and his failure to do so constitutes a procedural default. We hold that under Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), the state is judicially estopped from making this argument in federal court, and remand this matter to the district court to consider the merits of Whaley’s constitutional claims.

I.

In 1989, Whaley was convicted of rape and sentenced to a maximum term of…

dissenting:

I.

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust state remedies under 28 U.S.C. § 2254 (b)(1) by giving the state the opportunity “to pass upon and correct” the alleged federal constitutional violations. Baldwin v. Reese, 541 U.S. 27, 29 , 124 S.Ct. 1347 , 158 L.Ed.2d 64 (2004). “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state court with jurisdiction to consider it, or (2) he demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.1996) (citations omitted). Moreover, “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred ... there is a procedural default for purposes of federal habeas” and the federal court must generally dismiss the petition. Coleman v. Thompson, 501 U.S. 722 , 735 *1004 n. 1, 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).

Here, on motion by the state, the Oregon court of appeals dismissed as moot Whaley’s 2004 challenge to his parole…

Thomas J. Hester, Assistant Federal Public Defender, Portland, OR, for the appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Carolyn Alexander, Assistant Attorney General, Office of the Oregon Attorney General, Salem, OR, for the appellee.

Before: STEPHEN REINHARDT, Circuit Judge; CYNTHIA HOLCOMB HALL, Senior Circuit Judge; MILAN D. SMITH, JR., Circuit Judge.

Opinion by Judge REINHARDT; Dissent by Judge HALL.

REINHARDT, Circuit Judge:

Leslie Whaley has shuttled in and out of habeas corpus and parole proceedings since 1993. In one of the most recent iterations of this procedure, the state represented in an Oregon appellate court proceeding that his constitutional challenge to his parole conditions was moot under Oregon law because he had been removed from parole and reincarcerated. Although the parole revocation was based on the very conditions that he contends are unconstitutional, Whaley did not challenge that assertion, and the Oregon court, accordingly, dismissed the appeal. The state now argues, citing Oregon case law, that Whaley's constitutional claims were not moot. Therefore, it asserts, he was obligated to appeal the state court's…