Whaley v. Belleque, 9th Cir. Mar. 24, 2008
06-35759 Whaley v. Belleque
Before: Stephen Reinhardt, Circuit Judge; Cynthia Holcomb Hall, Senior Circuit Judge; Milan D. Smith, Jr., Circuit Judge.
REINHARDT, Circuit Judge: Leslie Whaley has shuttled in and out of habeas corpus and parole proceedings since 1993. In one of the most recent iterations 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 constitutes 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. … Whaley v. Belleque.
