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 *1004n. 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 conditions 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 Oregon supreme court under its discretionary original jurisdiction procedures, 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 Wha-ley’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 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 application of the procedural default doctrine would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546, Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (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 Hards v. Reed, 489 U.S. 255, 268, 109 S.Ct. 1038, 103 L.Ed.2d 308 (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 Oregon supreme court was “likel[y]” to have done if Wfhaley 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 failure timely to seek such a hearing would mean he had procedurally 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 reincarcerated 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 *1005had real consequences: 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 & Posh-Prison Supervision, 165 Or.App. 751, 754, 997 P.2d 277 (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 estop-ping the state from asserting it, and, in so doing, invokes the doctrine of judicial es-toppel 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 contradicts”); Wyler Summit P’ship v. Turner Broadcasting Sys., Inc., 235 F.3d 1184, 1190 (9th Cir.2000) (“manifestly inconsistent”); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990) (“directly contradicts”) (quoting Religious Technology 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 positions, 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 IB Moore’s Federal Practice ¶.405[8], at 238-42 (2d Ed.1988). “The policies underlying preclusion of inconsistent positions are ‘general consideration^] 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 sufficiently colorable argument that his claims were live that the 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 position is: “We were able to persuade the state court of appeals to adopt our position that Whaley’s petition was moot (probably in large part because he failed to oppose our motion to dismiss). The mootness argument was al*1006ways 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 estoppel does not apply.
Russell v. Rolfs does not suggest otherwise, contrary to the majority’s view. In Russell, the state of Washington first represented 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 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.
TV.
The majority’s application of judicial es-toppel 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, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Reed v. Ross, 468 U.S. 1, 10-11, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). I find no support for this view and therefore, respectfully, dissent.
. 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 narrowly 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 procedural default here.
. 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. Accordingly, 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 procedural default.”