dissenting:

Habeas corpus is, without doubt, one of the most complex and troubling areas of federal law. One can fairly debate whether the existing system of procedural bars and exhaustion requirements creates unnecessary obstacles and delays to federal review of prisoners’ constitutional claims. Compare Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (Judicial Conference of the United States, Aug 23, 1989), with Stephen Reinhardt, Must We Rush the Executioner?, L.A. Times B7 (Nov 7, 1989). As judges of an inferior federal court we are not in a position to make such judgments. These rules are established by Congress and by the Supreme Court; our obligation is to apply them. As they now stand, these rules place certain hurdles in the path of the federal habeas petitioner, hurdles put in place largely out of a respect for state interests. We may ignore neither these rules nor these interests.

Today the majority needlessly encroaches on the interests of the State of Washington, by allowing a challenge to a state conviction where the state had its own adequate and independent reasons for doing what it did. To make things worse, the majority blames the confusion on the state’s lawyers, placing on them an unmeetable burden. Today’s decision will only make more unmanageable an already delicate and difficult area of jurisprudence.

I

A. Under the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 87 , 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977), when a petitioner is procedurally barred from bringing his federal claims in state court, he is also barred from federal habeas, absent a showing of “cause” for the default and “prejudice” to the petitioner as a result. As the Supreme Court reiterated last Term in Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 1041-42 , 103 L.Ed.2d 308 (1989), the procedural default rule is a subset of the “adequate and independent state ground” doctrine. Where the last state court to render judgment in a case upholds a conviction on an independent and adequate state ground — such as a procedural default — federal habeas is generally precluded. Id. 109 S. Ct. at 1043 .

The rule of Harris is at the heart of this case. Harris held that, in order to find a procedural bar, the last state court to render judgment must have “clearly and expressly” stated that its ruling rests on a state procedural default. Id. Here it is uncertain whether the last court to consider the issue was the Washington Court of Appeals or the Washington Supreme Court. The majority acknowledges that the state court of appeals based its decision on a procedural default. Majority op. at 1035. Thus, if the court of appeals was the last state court to render judgment in Russell’s case, federal habeas is barred. 1

I submit that the court of appeals indeed was the last state court to render a judgment in this case. The majority assumes, to the contrary, that the supreme court commissioner’s ruling is the relevant decision for the application of Harris . But the commissioner’s ruling is the work of one man, not himself a justice of the Washington Supreme Court. It is far from clear that this ruling is a decision by the supreme court; the justices did not adopt the ruling, they merely refused to modify it. Excerpts of Record (ER) 4-1. Moreover, I doubt the commissioner’s ruling is properly considered a judgment. It is a “Ruling Denying Motion for Discretionary Review.” ER 3-1. The majority bypasses both these issues, sub silentio equating a denial of *1040 supreme court review by a lone commissioner with a ruling on the merits by the supreme court. It seems to me much more likely that the last state court to have ruled on Russell’s claims was the court of appeals. That court’s order contains a clear statement that the petition is procedurally barred.

B. Even if we assume that the commissioner’s ruling was a judgment (or that it was adopted verbatim by the supreme court), that decision is also sufficient to bar federal habeas. The majority concludes that the commissioner’s ruling did not “clearly and expressly” rely on a state procedural default to deny Russell relief. The majority errs once again.

The court of appeals, relying on In re Taylor, 105 Wash.2d 683 , 717 P.2d 755 (1986), held that Russell was barred from bringing his claims via a personal restraint petition (PRP) because he had already presented those claims on direct appeal. Memorandum of Authorities in Support of Respondent’s Motion for Summary Judgment, Exhibit 8. The commissioner’s ruling affirmed the court of appeals’ application of Taylor . ER 3-1 to 3-3. Taylor held that a PRP should be dismissed if the petitioner’s claims had already been rejected on direct appeal, unless the “ends of justice” would be served by hearing the claim. 717 P.2d at 758 . This is a procedural default rule. By affirming its application to Russell’s case, the commissioner clearly and expressly stated that a procedural bar was at least one basis for his ruling. 2

As part of his Taylor analysis, 3 the commissioner considered whether the “ends of justice” exception should apply. He discussed and rejected two theories — one factual and one legal — that might entitle Russell to such an exception. First, the commissioner found that there was no new evidence in the case sufficient to constitute a “colorable showing of factual innocence.” ER 3-3 (quoting Kuhlmann v. Wilson, 477 U.S. 436 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986)). Next, he concluded that “each of [Russell’s] three renewed legal issues still appears to be fully consistent with applicable caselaw.” ER 3-3.

In Taylor , the Washington Supreme Court explained that one example of an ends of justice exception is “an intervening change in the law.” 717 P.2d at 758 . The majority construes the commissioner’s “applicable caselaw” statement as an independent determination of Russell’s claims. Majority op. at 1036. But even the most *1041 cursory reading of Taylor reveals that this is not so. The “applicable caselaw” inquiry is an integral part of the Taylor analysis; the commissioner’s discussion tracks that analysis precisely. The commissioner was not performing an independent substantive review of Russell’s claims; he was doing only what Taylor said was required in determining that Russell’s petition was procedurally barred. His decision was “clearly and expressly” based on an affirmation of the court of appeals’ procedural ruling.

The majority’s reliance on In re Lee, 95 Wash.2d 357 , 623 P.2d 687 (1980), overruled in part, Hews v. Evans, 99 Wash.2d 80 , 660 P.2d 263 (1983), is puzzling. I can only assume that the majority cites Lee to demonstrate that the Washington Supreme Court has not consistently applied the rule of Taylor . It is true that a state procedural default is not adequate to bar federal habeas unless the procedural rule has been “consistently or regularly applied.” Johnson v. Mississippi, 486 U.S. 578 , 108 S.Ct. 1981, 1987 , 100 L.Ed.2d 575 (1988). The Court has explained that “[sjtate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” Hathorn v. Lovorn, 457 U.S. 255, 263 , 102 S.Ct. 2421 , 72 L.Ed.2d 824 (1982). This federal habeas rule is not relevant here because Lee and this case represent consistent applications of the Taylor rule.

As noted, the Washington Supreme Court in Taylor held that a PRP should be dismissed if the petitioner’s claims had already been rejected on direct appeal and the “ends of justice” would not be served by hearing the claim. 717 P.2d at 758 . In defining that phrase, the court explained that “an intervening change in the law” might justify collateral review. Id. Despite the difference in outcome, Lee and this case both follow this rule.

Malone and Russell were not treated similarly because they did not present “similar claims.” Hathorn, 457 U.S. at 263 , 102 S.Ct. at 2426 . Lee allowed collateral review of Malone’s conviction because there had been a change in relevant state law since the time of his direct appeal, namely State v. Holsworth, 93 Wash.2d 148 , 607 P.2d 845 (1980). Lee, 623 P.2d at 691-92 . In this case, both the court of appeals and the commissioner held that Russell’s PRP was barred because he had already raised the issues on direct appeal and there had been no intervening change in the relevant law. Memorandum of Authorities in Support of Respondent’s Motion for Summary Judgment, Exhibit 8; ER 3-3. Thus, the Washington Supreme Court has applied its procedural default rule consistently, allowing collateral review of previously adjudicated claims only if there has been a change in relevant law or another “ends of justice” exception applies. There was an independent and adequate state procedural ground to bar federal habeas. 4

II

Serious as is the majority’s error as to procedural bar, it pales by comparison to its alternative ruling regarding judicial es-toppel. This ruling reflects so little regard for the legitimate interests of the state courts and state prosecutors, it is certain to cause much mischief.

A. What is most baffling about the majority’s analysis of judicial estoppel is that it is flatly inconsistent with its analysis of *1042 procedural bar. In section III of its opinion, the majority finds it at least arguable that the commissioner in fact addressed Russell’s constitutional claims on the merits. Majority op. at 1036. The majority also concludes that a priori there was a good possibility that the Washington Supreme Court would hear Russell’s PRP:

Majority op. at 1036. How then, in section IV of its opinion, can the majority conclude that the state of Washington misled the district court at the first habeas hearing by arguing that Russell had an “available” state remedy?

On the first habeas petition, the state argued that Russell had failed to exhaust because he had a remedy available in state court. This argument was not merely successful, it was right. More than that, under Supreme Court caselaw, the state was required to make this argument: “When the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies.” Granberry v. Greer, 481 U.S. 129, 134 , 107 S.Ct. 1671, 1675 , 95 L.Ed.2d 119 (1987).

As the majority points out, at the time Russell brought his first habeas petition in federal court there was a good chance that he could get the Washington Supreme Court to hear his claims via a PRP. Majority op at 1036. This fact alone required the district court to dismiss Russell’s habeas petition. Moreover, under Granberry , the State of Washington had the obligation to make the argument for nonexhaustion based on the availability of that procedure. The state, therefore, did precisely what it was supposed to do.

The majority believes that the prosecutor overreached in characterizing the state procedure as “available,” because that term suggested to the district court that Russell’s claims would in fact be heard on the merits via a PRP. Majority op. at 1038. But under our caselaw, when a petitioner has not previously presented his claims to the state’s highest court, a procedure is “available” for purposes of the exhaustion requirement even if it is discretionary and contingent. Batchelor v. Cupp, 693 F.2d 859, 863 (9th Cir.1982). That was the case here. Under Taylor , Russell still had the live possibility that the state supreme court would consider his claim. The prospect of this state remedy — remote though it may have been — was enough to bar a federal habeas petition. Id. The procedure therefore was “available” as that word is normally understood in the exhaustion context. The majority does the state an injustice by interpreting its use of “available” far more broadly than the term is used in our own cases. The unfairness is particularly great because, under Granberry , the state authorities were required to point out to the district court that the availability of this remedy precluded federal habeas.

In any event, I don’t understand the majority’s fixation with the particular adjective employed by the state in describing the state PRP procedure. Given the way the PRP process actually operates in the State of Washington, it is quite clear that the district court was required to dismiss Russell’s first petition. It would have made no difference — none—if the state had said “contingently available” or “possibly available” or “maybe available” or “available for immediate occupancy.” The outcome would have been just the same. In fact, the language the state used — “adequate and available” — is a fair and accurate description of the situation in light of our caselaw as to what amounts to available.

Back in state court after the first habeas dismissal, the state did not argue that there was absolutely no avenue of review open to Russell, an argument that might have been inconsistent with the state’s representation in federal court; it argued only that the state courts should not exercise their discretion in giving Russell the benefit of the narrow Taylor exception. The majority apparently views this argument as inconsistent with the state’s prior argu *1043 ment in federal district court. But where is the inconsistency? There is a significant difference between arguing that there are state procedures available to petitioner, as the state was required to do, and actually helping him succeed once he avails himself of those procedures. As I see it, the state was well within the bounds of accepted practice in arguing before the state courts that Russell did not fall within the Taylor exception.

The majority places the state authorities in quite a bind: state lawyers must choose between violating federal law or ignoring their obligations under state law. Under the majority’s analysis, if the state makes its required showing of nonexhaustion in federal court, it is precluded from presenting a correct procedural default theory in state court. However the state’s lawyers resolve this dilemma, they would not be doing their jobs. After taking the state authorities to task for what they supposedly did wrong, it would be helpful if the majority would explain how the state should have done it differently. If we are going to make lawyers negotiate a path between Scylla and Charybdis, we might be well advised to give them a map.

B. In any event, I don't understand how the federal courts can complain about any inconsistency in the state’s litigating position. Estoppel operates forward, not backward. If there was an inconsistency between the state’s initial representation in federal court and its later assertions in state court, the first argument could estop the second, but the second could not estop the first. Thus, estoppel could apply only in the state court proceedings. Russell in fact argued estoppel, but the state courts rejected the claim and went on to find a procedural default. It was exclusively within the province of the state courts, it seems to me, to decide whether they would refuse to reach the merits of the prosecutor’s arguments because the prosecutor had changed positions upon returning from federal court.

As the majority explains, judicial estop-pel is an equitable doctrine designed to protect the dignity of judicial proceedings. See Majority op. at 1037, quoting Religious Technology Center v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989) (Hall dissenting); Arizona v. Shamrock Foods Co., 729 F.2d 1208, 1215 (9th Cir. 1984). If the Washington state courts did not feel their institutional interests were impugned by considering the state’s procedural default argument, what business is it of ours? By holding that the state was precluded from making the procedural default claim, the majority is telling the state courts that they were wrong to reach the claim and hold that there was a default. Quite simply, the majority is second-guessing the state courts on a question of state law.

The majority cannot avoid that conclusion by arguing that the state took inconsistent positions in the two federal court proceedings. In the first place, that is not in fact what the opinion relies on; the majority reviles the state for what it said in state court subsequent to its representation in federal court. Majority op. at 1037.

Moreover, there is no inconsistency between the positions the state took in its two appearances in federal court because there had been a material change in circumstances in the interim. The first time, the state claimed that Russell had failed to exhaust state remedies because state processes were still open to him. That assertion was entirely true. The second time, the state argued that, in light of the intervening ruling of the state courts, Russell was procedurally barred. That was equally true. The two arguments are indeed different, but they were made at different times, one before and one after the state courts had spoken on the question of procedural default. How the majority can invoke judicial estoppel under these circumstances is beyond me.

C. Finally, it is irrelevant what the majority thinks about judicial estoppel; that question is res judicata between the parties. Russell specifically raised the question before the state courts. The court of appeals rejected the claim, albeit without discussion. Memorandum of Authorities in Support of Respondent’s Motion for Summary Judgment, Exhibit 8. Of course, the *1044-1056 court’s failure to discuss the claim is not material; what counts is that it could not have reached the decision it did without rejecting the judicial estoppel claim. See Block v. Commissioners, 99 U.S. 686, 693 , 25 L.Ed. 491 (1878); Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 18 Federal Practice and Procedure § 4421 at 193 (West, 1981).

The state supreme court was more explicit. Assuming that the commissioner’s ruling became the opinion of the court, the court directly addressed and rejected the judicial estoppel claim:

ER 3-2 to 3-3. Having twice raised the claim of judicial estoppel in judicial proceedings and having had it rejected, Russell may not again raise it before us; it is res judicata. See St. John v. Wisconsin Employment Relations Bd., 340 U.S. 411 , 71 S.Ct. 375 , 95 L.Ed. 386 (1951); Abramson v. University of Hawaii, 594 F.2d 202, 207 (9th Cir. 1979).

Conclusion

The federal habeas doctrines of exhaustion and procedural default are comity based; they evince a respect for state court judgments, and an understanding that, in a federal system, the federal courts should not interfere when the states are taking care of their own business. Today, the majority erodes these doctrines, ignoring the interests of the State of Washington. The majority achieves this result by misconstruing the actions of the Washington courts, and overruling a state court judgment that is res judicata between the parties. Adding insult to injury, the majority takes the Washington state lawyers to task for doing exactly what they were supposed to do. I respectfully dissent.

. Absent a showing of cause and prejudice. See note 4 infra.

. And one basis is all that is needed. In Harris , the Supreme Court held that procedural bar need not be the sole basis for the state court judgment. The Court explained:

Harris, 109 S.Ct. at 1044 n. 10 (emphasis original; citation omitted).

. The majority is under the misapprehension that the commissioner did not apply Taylor at all. “Taylor only bars issues which have been 'heard and determined' by the reviewing court." majority op. at 1035 n. 3. Since the Washington Supreme Court never heard Russell’s claims on direct appeal, that court could not have rejected Russell's PRP on Taylor grounds, the majority reasons. The commissioner's reference to Taylor , the majority concludes, was merely an affirmation that the court of appeals — a court that had heard and determined Russell’s previous appeal — had properly applied a procedural bar. Majority op. at 1036.

The majority’s interpretation of Taylor is refuted by the facts of that case. In Taylor , a Washington Supreme Court case, the supreme court had not heard and determined Taylor’s case on direct review; only the court of appeals had affirmed his conviction. 717 P.2d at 757 . Yet the supreme court had no difficulty framing the issue before it as "whether Taylor’s PRP raises issues which this court may consider on collateral review.” Id. (emphasis added). It was in this context that the Washington Supreme Court held that an issue previously heard and determined on direct review in any Washington court will normally bar collateral review, absent an “ends of justice" exception. Id. at 757-58 . I don’t understand how the majority can conclude that the Taylor procedural bar applies only to courts that had previously heard and determined a direct appeal.

. Once procedural bar is established, a petitioner's only recourse is to show cause and prejudice. Wainwright, 433 U.S. at 87 , 97 S.Ct. at 2506 . Russell argues that the cause for his failure to raise all issues on direct appeal to the Washington Supreme Court was error by his attorney. Petitioner's Opposition to Motion for Summary Judgment at 3 (Dec 29, 1987). The Supreme Court has held that for attorney error resulting in procedural default to amount to cause, the error must rise to the level of constitutionally ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 , 91 L.Ed.2d 397 (1986). Such a claim, as it presents a constitutional question, must itself be raised and exhausted in state court before it may be used to establish cause for a procedural default. Id. at 489 , 106 S.Ct. at 2646. There has been no showing that Russell ever presented this claim to the state courts. Thus, at best, Russell must go back to state court to present his ineffective assistance of counsel claim before he could attempt to get around the procedural bar on his other claims.

As there is no showing of cause, the presence of actual prejudice is irrelevant.