Whaley v. Belleque

• Decision Date: 24 March 2008
• Docket Number: No. 06-35759.,06-35759.
• Citation: 520 F.3d 997
• Parties: Leslie WHALEY, Petitioner-Appellant, v. Brian BELLEQUE, Superintendent, Oregon Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 997

Leslie WHALEY, Petitioner-Appellant, v. Brian BELLEQUE, Superintendent, Oregon Department of Corrections, Respondent-Appellee.

No. 06-35759.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2007.

Filed March 24, 2008.

Thomas J. Hester, Assistant Federal Public Defender, Portland, OR, 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, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CV-05-00090-GMK.

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.

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.

I.

In 1989, Whaley was convicted of rape and sentenced to a maximum term of twenty years of incarceration, and a minimum 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 consecutively. The offenses involved a woman he met in a bar. In 1993, he filed a petition for post-conviction relief and a federal 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, 121 S.Ct. 157, 148 L.Ed.2d 105 (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 personal web sites without the prior permission of[parole officer]"; "use, own or operate any computer" unless authorized; or have his "name, address, phone, business or enterprise 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 evidence 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 conditions, including a "prohibition against viewing, listening to, owning or possessing any sexually stimulating visual or auditory materials that are relevant to [Whaley's] deviant behavior," a requirement that Whaley keep a driving log and not drive a motor vehicle alone without approval, and a prohibition 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 reviewable.

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 curfew 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 dismissal of his challenge to the parole conditions, asserting that his claims were moot and that the court therefore lacked jurisdiction. 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 Whaley, informed him of the dismissal in a letter dated July 1, 2004. The letter did not mention his right to appeal the dismissal, but stated that he could pursue either state postconviction relief or federal habeas corpus relief. In November 2004, he filed a pro se petition for habeas corpus in the Oregon Supreme Court challenging, among other things, his conditions 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 prisoner 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 determined, 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 for relief, however, the state moved to dismiss the petition, asserting that it was moot. The state represented that no remedy was available to him because "petitione...