Whittaker

MEMORANDUM **

Larry M. Whittaker appeals the district court’s judgment denying his petition for a writ of habeas corpus. The district court issued a certificate of appealability (“COA”) on three issues: (1) whether, under Russell v. Rolfs, 893 F.2d 1033 (9th Cir.1990), the State of Nevada was judicially estopped from asserting Whittaker’s procedural default in state court as a basis for denying federal habeas relief on numerous claims; (2) whether Whittaker’s defense counsel provided ineffective assistance by failing to advise Whittaker of an “irreconcilable conflict”; and (3) whether Whittaker was competent to plead guilty. We have jurisdiction, see 28 U.S.C. § 2253 , and affirm.

I.

With respect to the procedurally barred claims, the district court correctly distinguished Russell on the ground that the state made no representation that Whit-taker had an adequate and available remedy in state court. See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998) (“Russell ... is readily distinguished from the present case because here, the State never argued that Ortiz had an ‘adequate and available’ state remedy, or even that he would receive a state hearing on the merits of his…