Whaley v. Belleque

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LESLIE WHALEY, 
Petitioner-Appellant,
No. 06-35759
v.
BRIAN BELLEQUE, SUPERINTENDENT,  D.C. No.
CV-05-00090-GMK
OREGON DEPARTMENT OF
OPINION
CORRECTIONS,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Argued and Submitted
July 11, 2007—Portland, Oregon

Filed March 24, 2008

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

2857
2860 WHALEY v. BELLEQUE
COUNSEL

Thomas J. Hester, Assistant Federal Public Defender, Port-
land, Oregon, 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, Oregon, for
the appellee.

OPINION

REINHARDT, Circuit Judge:

Leslie Whaley has shuttled in and out of habeas corpus and
parole proceedings since 1993. In one of the most recent itera-
tions 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 consti-
tutes 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 twenty years of incarceration, and a mini-
 WHALEY v. BELLEQUE 2861
mum term of ten years before becoming eligible for parole.
He was also convicted of kidnapping, and sentenced to an
additional maximum term of ten years to be served consecu-
tively. The offenses involved a woman he met in a bar. In
1993, he filed a petition for post-conviction relief and a fed-
eral district court eventually found that there was insufficient
evidence to support the kidnapping conviction. Whaley v.
Thompson, 22 F. Supp. 2d 1146, 1167-68 (D. Or. 1998), aff’d
210 F.3d 388, 2000 WL 84364 (9th Cir. 2000) (unpublished),
cert. denied, 531 U.S. 864 (2000).

In August 2000, the Circuit Court of the State of Oregon
granted Whaley’s subsequent habeas corpus petition, holding
that the Board of Parole’s conclusion that he suffered from a
severe emotional disturbance that constituted a danger to the
community was not supported by the record. The court
ordered that he be released on parole. Shortly thereafter, he
was released with numerous parole conditions, including: no
dating without parole officer approval; anger management
counseling; electronic monitoring, curfew restrictions, and
geographical restrictions if ordered by the parole officer; no
contact with the victim or her family; and no contact with his
former girlfriend or his adult daughter from that relationship.

At the time, Whaley was engaged to Carolyn Flores, who
was evidently responsible for creating a website critical of the
state’s treatment of him. He was prohibited, as a condition of
his parole, from having contact with a “Mr. Flores,” who was
apparently Ms. Flores’s former or current husband. Flores has
two minor children whom Whaley considers stepsons. It
appears that in August 2000, Whaley and Flores requested
permission from the parole officer to marry, but received no
answer.

After Whaley served a brief jail sanction in October 2000
for enrolling in a sex offender program not approved by his
parole officer, the parole board imposed several additional
parole conditions on him. He was not to “develop or possess
2862 WHALEY v. BELLEQUE
personal web sites without the prior permission of [parole
officer]”; “use, own or operate any computer” unless autho-
rized; or have his “name, address, phone, business or enter-
prise of any type displayed in any manner on any web page
accessible to the general public.” His “knowledge that such
web site or web page exist [sic] . . . as may be verified by
periodic polygraph examination,” would be “considered evi-
dence of [his] involvement in such web site . . . and [would]
be considered a violation of this condition of supervision.” He
was also forbidden to possess or use intoxicating beverages,
have contact with minor females, “frequent any place where
minors are likely to congregate . . . without prior written
approval,” and have contact with Flores’s children. He was
also required to submit to random polygraph tests. His parole
was subsequently revoked and reinstated several times, with
the Board imposing these conditions each time, with some
variations.

In July 2001, Whaley was sanctioned for meeting with
then-fiancée Flores at a car dealership while her children were
nearby, and for not completing an approved sex offender
treatment program. In August 2001, his parole officer directed
him to have no contact with Flores. Four months later, while
he was incarcerated for violating parole conditions, he was
given permission to marry her. In a 2002 report summarizing
a parole Board hearing, the state described his marriage as
“defiant” and recommended that he be returned to prison for
18 months.

In January 2002, the Board again revoked Whaley’s parole,
and imposed two new parole restrictions: “no relationships
with women without the permission of parole officer,” and
“do not develop or maintain relationships with persons who
have control over minor children without permission of parole
officer.”

In April 2002, the Board revoked Whaley’s parole for
unspecified “criminal activity” and imposed additional condi-
 WHALEY v. BELLEQUE 2863
tions, including a “prohibition against viewing, listening to,
owning or possessing any sexually stimulating visual or audi-
tory materials that are relevant to [Whaley’s] deviant behav-
ior,” a requirement that Whaley keep a driving log and not
drive a motor vehicle alone without approval, and a prohibi-
tion against using a post office box without permission.

In May 2002, Whaley requested administrative review of
these conditions, but the parole board found his petition
untimely because he did not challenge the conditions when
they were first imposed in November 2000. He then filed a
challenge in the Oregon Court of Appeals. The state moved
to dismiss, asserting that the petition was untimely. The state
court held that the special conditions of parole were review-
able.

While this litigation was pending, Whaley continued to
shuttle between prison and parole. In June 2002, his parole
was revoked because he briefly left his hotel room after cur-
few and contacted his wife through an intermediary, and
because his wife spoke on the phone with the night clerk of
his hotel. In September 2002, the Board released him and
imposed additional parole conditions on him. He filed an
administrative appeal, which the parole board rejected as
untimely. In January 2003, his parole was again revoked for
violations of his parole conditions. In April 2003, the Board
ordered him to spend the remaining 43 months of his sentence
in prison.

After Whaley was reincarcerated, the state moved for dis-
missal of his challenge to the parole conditions, asserting that
his claims were moot and that the court therefore lacked juris-
diction. For some unexplained reason, Whaley did not oppose
the motion, and in April 2004, after noting that the state’s
motion was unopposed, the Oregon Court of Appeals issued
an order concluding “[j]udicial review dismissed.”

The Oregon public defenders, who had represented Wha-
ley, informed him of the dismissal in a letter dated July 1,
2864 WHALEY v. BELLEQUE
2004. The letter did not mention his right to appeal the dis-
missal, but stated that he could pursue either state post-
conviction relief or federal habeas corpus relief. In November
2004, he filed a pro se petition for habeas corpus in the Ore-
gon Supreme Court challenging, among other things, his con-
ditions of parole. The supreme court denied the petition
shortly thereafter, without comment.

Whaley filed the current petition in federal district court in
March 2005, challenging, inter alia, the terms of his parole.
The district court held on July 14, 2006, that his claims were
exhausted because he was time-barred from appealing to the
Oregon Supreme Court, but procedurally barred because he
had failed to appeal the dismissal for mootness to that court.
The district court, in denying his habeas petition, held that he
had “failed to demonstrate cause for the [procedural] default
. . . .” as well as prejudice.

Whaley filed a timely notice of appeal on August 14, 2006.
At oral argument before this court, his counsel reported that
he had been released on parole two weeks prior to argument
on the same conditions as before.

II.

Before seeking a federal writ of habeas corpus, a state pris-
oner must exhaust available state remedies. 28 U.S.C.
§ 2254(b)(1)(A). Whaley’s petition is not barred by the
exhaustion requirement, because, as the district court deter-
mined, there is no longer a state remedial process available
for adjudicating Whaley’s claims. On appeal, neither party
contests this determination.

The state argues here, as it did successfully in the district
court, that Whaley’s claim is procedurally defaulted because
he failed to appeal the Oregon Court of Appeals’ dismissal of
his challenge to his parole conditions to the Oregon Supreme
Court. When Whaley petitioned the Oregon Court of Appeals
 WHALEY v. BELLEQUE 2865
for relief, however, the state moved to dismiss the petition,
asserting that it was moot. The state represented that no rem-
edy was available to him because “petitioner has been
revoked from parole and is no longer subject to the supervi-
sion conditions he challenges in this proceeding.” It stated
that “[t]he Oregon Supreme Court has recognized that ‘appel-
late courts may not decide abstract, hypothetical or contingent
questions,’ ” and contended that, because it was moot, the
petition did not present a “justiciable controversy” under Ore-
gon law. Whaley did not challenge the state’s mootness argu-
ment or file any opposition to its motion, and the Oregon
appellate court granted the state’s unopposed motion to dis-
miss.

Remarkably, the state now takes the position in its brief
that Whaley’s claim was in fact not moot. It argues that Wha-
ley should have “explain[ed] to the [Oregon] Court of
Appeals that the case was not mooted by his revocation and
reincarceration, and then [sought] review by the Oregon
Supreme Court.” In now trying to prove that it was wrong in
its representations to the Oregon Court of Appeals, the state
even goes so far as to assert that a prior Oregon case, Perdue
v. Board of Parole and Post-Prison Supervision, 165 Or. App.
751 (2000), contradicts the position it took before the state
court. Under Perdue, a petition for judicial review is not moot
if “a correlation exists between the challenged Board action
and the consequences from which relief is sought.” Id. at 754.
The state now argues in its brief that the Board action chal-
lenged by Whaley and the consequences from which he
sought relief “were directly correlated.”1
1
During oral argument the state repeatedly attempted to evade the
court’s efforts to discern its current position with respect to whether Wha-
ley’s claims were moot under Oregon law. The dissent asserts that the
state is now trying only to “persuade us that Whaley had a sufficiently col-
orable argument . . . that the Oregon supreme court would likely have
agreed with him . . . .” That is no different from saying, as the dissenting
judge stated in Religious Technology Center v. Scott, 869 F.2d 1306, 1311
(9th Cir. 1989) (Hall, J., dissenting), that the state has “chang[ed] its posi-
tion over the course of judicial proceedings.” The state argued before the
state court that Whaley’s case was moot, period. It certainly did not con-
tend that the Oregon Supreme Court would disagree with its position.
2866 WHALEY v. BELLEQUE
[1] When in its motion for dismissal it represented to the
Oregon appellate court that Whaley’s claim was moot, the
state did not mention Perdue, a case of which it was surely
aware, as it had been a party to that proceeding only a short
time earlier. By failing to do so, it violated the elementary
rules of legal ethics. In any event, the state’s position that its
misrepresentation of the law provides the basis for precluding
the victim of its “error” from vindicating his constitutional
rights is “chutzpah” in the first degree, by any standard.

[2] More important, under the doctrine of judicial estoppel,
the state cannot now reverse its position in order to suit its
current objectives. “Judicial estoppel, sometimes also known
as the doctrine of preclusion of inconsistent positions, pre-
cludes a party from gaining an advantage by taking one posi-
tion, and then seeking a second advantage by taking an
incompatible position.” Rissetto v. Plumbers & Steamfitters
Local 343, 94 F.3d 597, 600 (9th Cir. 1996). “Judicial estop-
pel is an equitable doctrine that is intended to protect the
integrity of the judicial process by preventing a litigant from
playing fast and loose with the courts.” Wagner v. Prof’l
Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044 (9th Cir. 2004)
(internal quotation marks omitted). The doctrine applies to a
party’s legal as well as factual assertions. Id.

[3] In Russell v. Rolfs, 893 F.2d 1033, 1037-38 (9th Cir.
1990), we held that judicial estoppel bars a state from taking
different legal positions in state and federal court in order to
create a procedural default that would otherwise bar a habeas
petition. In that case, Washington State argued to a federal
district court that federal review of a habeas petition was not
proper because the petitioner had an adequate and available
remedy in state court. When the petitioner then sought that
remedy in state court, the state “disregarded its previous rep-
resentation in federal court and argued the petition was proce-
durally barred.” Id. We held that “[t]he state prevailed by
telling the state court the opposite of what it told the federal
court. The proposition that the state can be estopped from
 WHALEY v. BELLEQUE 2867
relying on the advantage it gained by doing so seems unre-
markable.” Id. at 1038.

[4] In this case, the state created an advantage for itself by
arguing to the Oregon court that Whaley’s claims were moot.
The state cannot now expect a federal court to hold that Wha-
ley had an available state remedy because, according to the
state’s current petition, the claim was not moot. It is not for
this court to choose between the state’s inconstant and self-
serving descriptions of Oregon law. We may not allow the
state to represent in federal court the opposite of what it repre-
sented to the state court when it succeeded in defeating Wha-
ley’s claim.2

[5] A petitioner with a claim that is moot under Oregon
state law does not need to pursue his claims further because
he no longer has any available state remedy. As the Oregon
Supreme Court held in State v. Snyder, 337 Or. 410, 418
(2004), “the judicial power of the state is limited to deciding
existing controversies between parties.” Because Oregon
courts may not decide moot cases, it is difficult to conceive
of a legal bar other than mootness that would lead us more
confidently to conclude that there is an absence of available
state remedies.3
2
Contrary to the dissent’s assumption, we do not and need not defer in
this case to the state court’s order. The state moved to dismiss the petition
as moot on the ground that it had revoked Whaley’s parole. Whaley did
not oppose the motion, and the state court thereupon granted the unop-
posed motion. It did not issue a decision on the merits, and we therefore
need not defer to the decision or determine whether it was unreasonable.
Cf. 28 U.S.C. § 2254(d)(1).
3
The dissent argues that our application of judicial estoppel means that
the petitioner is free to abandon action at the state level whenever a state
convinces a state court that a petition for post-conviction relief is proce-
durally defective. If a petition is procedurally defective—for example, if
it is moot—then the petitioner is not “abandoning” any relief at the state
level. There is no relief to be had. If the petitioner decides to try his luck
in federal court, the state may of course continue to argue that his case is
2868 WHALEY v. BELLEQUE
[6] It is true that Whaley could have filed a notice of appeal
to the Oregon Supreme Court. But according to the state’s
representations in state court, which bind it here, such an
appeal would have been futile because the Oregon Supreme
Court will not hear a moot case. A remedy that is futile
because the court will not hear the merits of a case is unques-
tionably not available. Thus, there was no procedural default,
and the district court is not barred from hearing Whaley’s
petition.

[7] Having argued in the Oregon appeals court that Wha-
ley’s claims were moot, and, as a result having obtained a dis-
missal of his claims, the state cannot now oppose his petition
for relief on the theory that the claims were not moot, and
that, therefore, he failed to exhaust an available state remedy.

REVERSED and REMANDED for further proceedings on
the merits.

HALL, Circuit Judge, dissenting:

I.

Before seeking a federal writ of habeas corpus, a state pris-
oner must exhaust state remedies under 28 U.S.C.

moot. It cannot, as in this case, however, switch its position to suit its
needs at the moment.
We cannot imagine that in this case the state will raise mootness at a
subsequent time, because it has already switched its position once and has,
as we have pointed out, an ethical obligation to represent to the court its
view of the law as it honestly perceives it. Moreover, it is apparent that
the case is not moot for two reasons. One, Whaley is now serving parole
time for a violation of terms that he is asserting are unconstitutional. Two,
he is subject to a future violation, again, for terms that he is contesting in
this proceeding.
 WHALEY v. BELLEQUE 2869
§ 2254(b)(1) by giving the state the opportunity “to pass upon
and correct” the alleged federal constitutional violations. Bal-
dwin v. Reese, 541 U.S. 27, 29 (2004). “A petitioner has satis-
fied 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 peti-
tioner 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 n.1 (1991).

Here, on motion by the state, the Oregon court of appeals
dismissed as moot Whaley’s 2004 challenge to his parole con-
ditions because he had been reimprisoned. Whaley never
opposed the state’s motion or appealed this decision to the
state supreme court, and the time to do so has long since
elapsed. Instead, he filed a new petition to the Washington
supreme court under its discretionary original jurisdiction pro-
cedures, which clearly did not fairly present the claims nor
satisfy the exhaustion requirement. See Casey v. Moore, 386
F.3d 896, 918 (9th Cir. 2004); Sweet v. Cupp, 640 F.2d 233,
238 (9th Cir. 1981).

Quite surprisingly, the majority finds no procedural default.
It reasons that Whaley’s claims were moot as a matter of state
— but not federal — law because the state is estopped from
contending otherwise, having argued the claims were moot in
its motion to dismiss.1 So, because Oregon courts will not
1
In the AEDPA, Congress provided that “[a] state shall not be deemed
to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the state, through counsel, expressly waives
the requirement.” 28 U.S.C. § 2254(b)(3). However, our circuit has nar-
2870 WHALEY v. BELLEQUE
address moot claims, the majority concludes that Whaley had
no state remedy available to him, and thereby excuses the
exhaustion requirement.

I disagree that judicial estoppel applies here and would
instead find that Whaley procedurally defaulted when he
failed timely to directly appeal to the state supreme court.
Moreover, Whaley has not attempted to show cause for or
prejudice from the procedural default, or contended that appli-
cation of the procedural default doctrine would result in a fun-
damental miscarriage of justice. See Coleman, 501 U.S. at
750, Murray v. Carrier, 477 U.S. 478, 495 (1986). Therefore,
I conclude his petition should be dismissed and respectfully
dissent.

II.

To determine whether a state remedy is “available,” “the
federal courts are authorized, indeed required, to assess the
likelihood that a state court will accord the habeas petitioner
a hearing on the merits of his claim.” Phillips v. Woodford,
267 F.3d 966, 974 (9th Cir. 2001) (quoting Harris v. Reed,
489 U.S. 255, 268 (1989) (O’Connor, J., concurring)). In
other words, we will not conclude that Whaley was without
a state remedy simply because the Oregon court of appeals
said so. We must instead inquire independently what the Ore-
gon supreme court was “likel[y]” to have done if Whaley had
properly appealed. If “the likelihood” is that it would have
disagreed with the court of appeals — that is, concluded that
Whaley’s petition was not moot — then Whaley would have
been accorded a hearing on the merits of his petition, and his

rowly construed this provision and held that normal waiver and estoppel
rules apply to a state’s claim that the petitioner has procedurally defaulted.
Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Therefore,
§ 2254(b)(3) does not prevent the state from being estopped to raise proce-
dural default here.
 WHALEY v. BELLEQUE 2871
failure timely to seek such a hearing would mean he had pro-
cedurally defaulted.

Whaley had a strong argument that his claims were not
moot, and he should have properly presented it to the state
supreme court. As the majority recognizes, Whaley was rein-
carcerated for violating the very parole conditions that his
petition challenged. This meant that the conditions were
meaningful even after they were no longer literally in effect,
because they were the reason that Whaley was imprisoned.
Thus, success on his petition would have had real conse-
quences: his incarceration would have been illegal, and he
would have been released.

So, Whaley could persuasively have argued that his petition
was not moot. See Perdue v. Bd. of Parole & Post-Prison
Supervision, 165 Or. App. 751, 754 (2000) (a petition for
judicial review is not moot if “a correlation exists between the
challenged Board action and the consequences from which
relief is sought”). The Oregon supreme court probably would
have agreed with him and given him a hearing on the merits.
This means Whaley had an “available” remedy under state
law that he did not timely pursue, and his federal petition is
thus procedurally defaulted.

III.

The majority avoids this result by estopping the state from
asserting it, and, in so doing, invokes the doctrine of judicial
estoppel in a context where it does not apply. Our circuit has
repeatedly held that for a party to be judicially estopped, its
litigation positions must have been clearly inconsistent and
directly contradictory. See, e.g., United States v. Castillo-
Basa, 483 F.3d 890, 898-99 n.5 (9th Cir. 2007) (“directly con-
tradicts”); Wyler Summit P’ship v. Turner Broadcasting Sys.,
Inc., 235 F.3d 1184, 1190 (9th Cir. 2000) (“manifestly incon-
sistent”); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.
1990) (“directly contradicts”) (quoting Religious Technology
2872 WHALEY v. BELLEQUE
Center v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989) (Hall, J.,
dissenting)). The insistence on an absolute contradiction is not
surprising given the theoretical basis for the judicial estoppel
doctrine. As I wrote in dissent in the Religious Technology
case:

The doctrine of judicial estoppel, sometimes referred
to as the doctrine of preclusion of inconsistent posi-
tions, is invoked to prevent a party from changing its
position over the course of judicial proceedings
when such positional changes have an adverse
impact on the judicial process. See 1B Moore’s Fed-
eral Practice ¶ .405[8], at 238-42 (2d Ed.1988). “The
policies underlying preclusion of inconsistent posi-
tions are ‘general consideration[s] of the orderly
administration of justice and regard for the dignity of
judicial proceedings.’ ” Arizona v. Shamrock Foods
Co., 729 F.2d 1208, 1215 (9th Cir.1984), cert.
denied, 469 U.S. 1197, 105 S.Ct. 980, 83 L.Ed.2d
982 (1985) (citations omitted). Judicial estoppel is
“intended to protect against a litigant playing ‘fast
and loose with the courts.’ ” Rockwell International
Corp. v. Hanford Atomic Metal Trades Council, 851
F.2d 1208, 1210 (9th Cir. 1988) (citations omitted).
Because it is intended to protect the integrity of the
judicial process, it is an equitable doctrine invoked
by a court at its discretion.

869 F.2d 1306 at 1311.

Here, ironically, it is the majority which plays fast and
loose with the facts, as it manufactures the purported conflict
in the state’s positions. The majority construes the state now
to argue that Whaley’s claims absolutely were not moot under
state law, thereby directly contradicting its earlier motion to
dismiss. But as explained above, the state need not take this
position. It need only persuade us that Whaley had a suffi-
ciently colorable argument that his claims were live that the
 WHALEY v. BELLEQUE 2873
Oregon supreme court would likely have agreed with him and
given him a hearing on the merits.

I read the state’s brief to argue just that. In effect, its posi-
tion is: “We were able to persuade the state court of appeals
to adopt our position that Whaley’s petition was moot (proba-
bly in large part because he failed to oppose our motion to
dismiss). The mootness argument was always a longshot,
though, and we only made it because Whaley seems like such
a dangerous guy that we wanted to do everything we could to
keep him away from young children. In fact, we wouldn’t
have liked our chances at the state supreme court — if we
were a betting state, our money would have been on reversal.
So, this court should conclude that the supreme court would
probably have given Whaley a hearing on the merits. Since he
didn’t ask for one in the right way, he procedurally defaulted.”2

This argument is not manifestly inconsistent or directly
contradictory with the state’s prior contention that Whaley’s
claims were moot. Accordingly, the doctrine of judicial estop-
pel does not apply.

Russell v. Rolfs does not suggest otherwise, contrary to the
majority’s view. In Russell, the state of Washington first rep-
resented to the federal court that state remedies existed in the
form of a “Personal Restraint Petition,” then persuaded the
state courts — including the state supreme court — that such
a petition was procedurally defective because it raised the
2
In its brief, for example, the state argues that:
[P]etitioner could have opposed the state’s motion to dismiss,
arguing that his case was not moot . . . . Indeed, [P]etitioner was
obligated under the exhaustion doctrine to oppose the state’s
motion and then seek review on that basis by the Oregon
Supreme Court. . . . If he had been successful, the Court of
Appeals would have considered his claim on the merits. Accord-
ingly, it was petitioner’s own choice, not the state’s actions or the
absence of a corrective state process, that is the cause of his pro-
cedural default.”
2874 WHALEY v. BELLEQUE
same issues that the petitioner had asserted on direct appeal.
893 F.2d at 1034-35, 1037. When the petitioner returned to
federal court with a second habeas petition, we held that the
state was estopped from arguing that he was procedurally
barred. Id. at 1037-38. Estoppel was appropriate because the
state’s positions were irreconcilable — it first argued a state
remedy existed, and then, after the petitioner attempted to
avail himself of this remedy, contended that it was foreclosed.
As I explained above, no such inconsistency exists in this
case.

IV.

The majority’s application of judicial estoppel means that
whenever the government of a state convinces one of its lower
or intermediate courts that a petition for post-conviction relief
is procedurally defective, the petitioner is free to abandon all
action at the state level and proceed immediately to federal
court. This result does violence to the concerns for comity,
federalism, and orderly administration of justice that underlie
the procedural bar doctrine. See Lambrix v. Singletary, 520
U.S. 518, 523 (1997); Reed v. Ross, 468 U.S. 1, 10-11 (1984).
I find no support for this view and therefore, respectfully, dis-
sent.