United States Ninth Circuit

Denial of a pro se habeas petition as procedurally barred is remanded for consideration on the merits where, under Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), the state was judicially estopped from making its argument for procedural default in federal court. Having argued in a state appeals court that petitioner's claims were moot, and, as a result having obtained a dismissal of his claims, the state could not 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.

Appellate Information

• Argued 07/11/2007
• Decided 03/24/2008
• Published 03/24/2008

Judges

• Before:  STEPHEN REINHARDT, Circuit Judge;  CYNTHIA HOLCOMB HALL, Senior Circuit Judge;  MILAN D. SMITH, JR., Circuit Judge.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Thomas J. Hester, Assistant Federal Public Defender, Portland, OR, for the appellant.


• For Appellees:
  
• Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Carolyn Alexander, Assistant Attorney General, Office of the Oregon Attorney General, Salem, OR, for the appellee.