Kenneth William Brown, Jr. v. Manfred Maass, Superintendent

Kenneth William Brown, an Oregon state prisoner, appeals the dismissal of his federal petition for a writ of habeas corpus. The district court dismissed Brown’s petition because he had procedurally defaulted on his state court remedies by failing to present his federal claims to the Oregon Supreme Court for review. We reverse.

Brown filed his federal habeas petition on January 24,1990. As of that date, he had not exhausted his state remedies. He could have filed a timely petition for review of his federal claims on January 24, and he could have requested an extension of time to file his petition for review at any time before the Oregon Court of Appeals Judgment against him became final on March 14, 1990. Since Brown had available state court remedies at the time he filed his federal habeas petition, the proper ground for dismissing the petition was failure to exhaust, not procedural default. See Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir.1982). The state, however, did not raise the failure to exhaust defense in the district court.

We have held that a state waives a procedural default when it fails to raise it in federal court and instead relies erroneously on a claim of…