Louis Eugene Russell v. Tom Rolfs, Superintendent

TROTT, Circuit Judge:

Louis Eugene Russell, a Washington state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court found that the issues raised in the petition were waived by Russell due to a state procedural default. On appeal, Russell disputes this finding, arguing that the Washington Supreme Court reached the merits of his claim, and, in the alternative, that a procedural barrier should not deny him relief. Russell also contends that sufficient cause and prejudice exist to entitle him to a federal hearing on the merits, and he suggests that the state should be estopped from raising the issue of procedural bar to deny him relief. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I

The charges against Russell stemmed from a series of events which began when Russell was invited to the home of two strangers, Kenneth and Sherry Hanks. The evening ended with the death of Mr. Hanks, and with the severe stabbing and alleged rape of Mrs. Hanks.

Mrs. Hanks, the prosecution’s main witness, testified that Russell killed her husband, raped her at knifepoint, and then stabbed her. Russell, testifying on his own behalf, related a different story. He alleged that Mr. Hanks invited him to a home to have intercourse with a “girl,” who turned out to be Mrs. Hanks. Russell claimed that after he complied with the invitation, Mr. Hanks returned and became so enraged that he stabbed Mrs. Hanks and proceeded to attack Russell, who wrestled the knife away. Russell then testified that in self-defense he stabbed Mr. Hanks repeatedly, causing Mr. Hanks’s death. Russell was apprehended while in flight from the victims’ home.

The state charged Russell with first-degree murder, first-degree rape, and attempted rape. A jury acquitted him of the first-degree murder of Mr. Hanks. When the jury could not reach a verdict on the other two charges, a mistrial was declared. In a second trial, on amended charges, Russell was convicted by the jury of second-degree murder, first-degree attempted murder, and rape in the first degree. Consequently, Russell was sentenced to two concurrent maximum sentences of twenty years for attempted murder and rape while armed with a deadly weapon.

Russell appealed his conviction, raising issues regarding all three offenses. The Washington Court of Appeals affirmed his convictions. State v. Russell, 33 Wash. App. 579, 657 P.2d 338 (1983).

Russell then sought discretionary review of his second-degree murder conviction in the Washington Supreme Court. He raised only three of the seven issues argued before the court of appeals. Russell allegedly believed, however, that all the issues he argued before the Washington Court of Appeals were preserved for argument before the supreme court. After refusing to hear argument on issues not included in his petition, the court reversed the second-degree murder conviction and remanded for a new trial. His convictions of rape and attempted murder remained intact. State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984). The state did not seek a retrial on the second-degree murder charge.

Russell next filed a petition for writ of habeas corpus seeking federal review of his two remaining state convictions. Russell raised three grounds for relief: (1) denial of the presumption of innocence in violation of the Fifth and Fourteenth Amendments; (2) denial of due process in violation of the Fifth and Fourteenth Amendments based on alleged prosecutorial misconduct; and (3) denial of the right to confront and cross-examine witnesses in violation of the Sixth and Fourteenth Amendments. Although these claims were argued before the court of appeals, they had not been raised in the petition before the Washington Supreme Court. The United States District Court denied without prejudice Russell’s petition for failure to exhaust state remedies, apparently relying on the state’s argument for dismissal based on the existence of an “adequate and available ” remedy in state court through Washington’s personal restraint petition procedure.

Russell then attempted-as apparently invited-to raise these issues before the Washington Supreme Court, but the state now took the position that he had no remedy by way of such a petition. The supreme court transferred the case to the Washington Court of Appeals which found Russell procedurally barred at that level because the issues were the same ones raised in his direct appeal to that court. On this basis, the court of appeals denied his personal restraint petition.

Russell next filed for discretionary review before the Washington Supreme Court, which, after stating that the court of appeals had not erred in concluding that Russell was procedurally barred from relit-igating the issues in that court, declined to exercise its own discretionary jurisdiction.¹ The court additionally stated that an “ends of justice” exception that might have given him relief from his default was not available because the court of appeals’ treatment appeared to be fully consistent with applicable case law.²

Russell then returned to federal court, raising in a second habeas corpus petition the same issues on which he had previously attempted to rely. The attorney general resisted his petition, arguing that Russell was procedurally barred from presenting his claim in federal court. A United States Magistrate decided that the Washington Supreme Court had reached the merits of Russell’s claims; therefore, he was entitled to federal review on the merits. The district court disagreed, however, and dismissed the petition based on its interpretation of the final state court finding to the effect that Russell was procedurally barred from review. This appeal followed.

II

This court reviews a district court’s denial of a petition for writ of habeas corpus de novo. Bruni v. Lewis, (9th Cir.), cert. denied, - U.S. -, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988), - U.S. -, 109 S.Ct. 1319, 103 L.Ed.2d 587 (1989); Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir.1987), cert., denied, - U.S. -, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988).

The district court determined there was no material fact in dispute as to whether Russell failed to comply with a reasonable state procedure and dismissed the petition. We disagree and conclude that under Washington law no procedural default occurred. In the alternative, we find the state is estopped from arguing ■ Russell failed to exhaust his state remedies.

Ill

The first issue we address is whether the Washington Supreme Court, as the “last state court rendering a judgment in the case,” “clearly and expressly” relied on procedural default to deny Russell relief. Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted). We find that it did not. The court’s denial, as reflected in its commissioner's report dated July 24, 1987 and in the court’s subsequent refusal to modify that report on October 6, 1987, was actually based on two distinct grounds. First, the court found no error in the state court of appeals’ application of In re Taylor, 105 Wash.2d 683, 717 P.2d 755, 757 (1986),³ agreeing that Russell’s issues were procedurally barred in that intermediate court as having been previously “heard and determined.” Second, the court elected not to exercise its discretionary power to review Russell’s claims on the merits.

It is significant in our interpretation that the Washington Supreme Court decided not to exercise its discretionary power — as contrasted with refusing to hear Russell’s case because of a procedural bar — that the commissioner’s report makes the following statement after its discussion of the Taylor issue:

Further, the Court of Appeals’ treatment in Mr. Russell’s [initial] appeal of each of his three renewed legal issues still appears to be fully consistent with applicable case law. The more recent cases Mr. Russell cites do not change the governing rules of law. (Citations omitted).

In the procedural posture in which this matter found itself before the Washington Supreme Court, it cannot be said that this language is of little consequence. It is even reasonably susceptible of a conclusion that the supreme court not only was afforded the opportunity to address petitioner’s constitutional claims, but in fact did so.⁴ It is not, however, necessary to go that far to decide this case. It is sufficient to note that the “clear and express” statement relying on procedural default required by the Supreme Court in Harris before a petitioner will be barred from presenting his constitutional claims for federal review simply does not appear anywhere in this record.

The facts of this case are not unlike those involving one of the petitioners, Benjamin Malone, in In re Lee, 95 Wash.2d 357, 623 P.2d 687 (1980), rev’d on other grounds sub nom., Hews v. Evans, 99 Wash.2d 80, 660 P.2d 263 (1983). Malone, following his conviction of being a habitual criminal, appealed directly to the Washington Supreme Court. The court, in turn, transferred the appeal to the Washington Court of Appeals. Malone's appeal was based on several grounds, including the admission of a prior conviction based upon a guilty plea which Malone claimed was invalid. The court of appeals affirmed the habitual criminal conviction. Malone then petitioned the supreme court for discretionary review but did not include the prior conviction issue in his petition. The petition was denied.

Upon hearing Malone’s subsequent collateral attack, the supreme court exercised its discretion in his favor and referred his personal restraint petition to the superior court to be heard on the merits, stating:

We could, perhaps, hold that since he did not persist in his protest to the admissibility of the plea-based conviction in his petition for discretionary review to this court that he had abandoned the issue. We do not choose to do so. Malone did everything that any petitioner in Hols-worth [⁵] did except prevail upon this court to examine his claim of error. He raised the issue in a timely manner, and most lucidly, in the trial court and again in the Court of Appeals. Neither court recognized the validity of his contentions. While it may be said that it is not the function of a personal restraint petition to correct trial and appellate court mistakes, we think the error here, in light of Holsworth, to be too palpable to be disregarded.

In re Lee, 623 P.2d at 692.

Following this logic, Russell’s failure initially to petition the supreme court for a hearing on the merits did not necessarily foreclose that court from considering in a later hearing the issues not raised in an earlier one, and it certainly did not automatically bar him from bringing them to its attention. See Hews v. Evans, 99 Wash.2d 80, 660 P.2d 263 (1983). Guided by Lee, we cannot find a procedural default here merely because issues were raised in a personal restraint petition that had not been previously taken to the state supreme court on direct appeal from the court of appeals. This finding is not contrary to Taylor, relied on by the appellees. As noted earlier, Taylor only bars issues that have been “heard and determined” by the same reviewing court. 717 P.2d at 757.

We conclude that Russell’s personal restraint petition to the Washington Supreme Court constituted exhaustion of state remedies. Accordingly, we reverse the decision of the district court.

IV

In her dissent to Religious Technology Center v. Scott, 869 F.2d 1306, 1311 (9th Cir.1989) (citation omitted), Judge Hall sets forth the principles underlying judicial es-toppel:

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 considerations] 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.

... Judicial estoppel is most commonly applied to bar a party from making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the same proceeding or a prior one. See generally Note, Judicial Estoppel: The Refurbishing of a Judicial Shield, 55 Geo.Wash.L.Rev. 409, 410-12 (1987); Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 Nw.U.L.Rev. 1244 (1986).

During the first habeas proceeding in district court, the state argued federal review was not proper because Russell had "an adequate and available state court remedy through a Personal Restraint Petition," citing Washington Rules of Appellate Procedure 16.3 et seq. Following the dismissal of his petition, Russell-not surprisingly-filed such a personal restraint petition in December 1986 in the Washington Supreme Court, which transferred it to the court of appeals. Once in state court, the state disregarded its previous representation in federal court and argued the petition was procedurally barred because Russell had raised the same issues on direct appeal. Specifically, in a document entitled Response to Personal Restraint Petition filed on March 6, 1987 in the Washington Supreme Court, the state argued that "Russell's personal restraint petition should be dismissed because this petition [sic] raises the same legal basis for granting relief as did his appeal, the issues were decided on the merits against Russell, and now considering these same issues in his personal restraint petition would not serve the ends of justice." The document continues:

The consideration of these issues at this time would not serve the ends of justice, especially since Russell has failed to provide any explanation for his failure to raise these issues when he had the opportunity three years ago. To grant this type of collateral relief would undermine the finality of litigation, degrade the prominence of the trial, and cost society the right to punish an offender. (Emphasis added).

This language is flatly inconsistent with the state’s previous representation of June 5, 1986 in federal court that Russell’s remedy in the state courts through the personal restraint petition procedure was presently “adequate and available.” The word “available” as used in 28 U.S.C. § 2254(b) (requiring a petitioner first to exhaust available remedies in state court unless there exists an absence of corrective processes or “circumstances rendering such process ineffective to protect the rights of the prisoner”) does not refer to an avenue that exists on a map but is closed permanently to the kind of vehicle being driven by the defendant. It does not include a door that has been forever sealed. This was highlighted by Justice O’Connor in her concurring opinion in Harris, when she said, “Thus, in determining whether a remedy for a particular constitutional claim 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.” 109 S.Ct. at 1046 (O’Connor, J. concurring, joined by The Chief Justice, and Scalia, J.) (emphasis added).

In the ease sub judice, the federal district court was told not only that a remedy was “available” in state court, but that it was also “adequate.” The use of these two adjectives in tandem was tantamount to advising the federal district court that Russell would be given a hearing in state court on the merits of his claims.

The dissent argues that if we apply judicial estoppel against the state in this case, we place state authorities in "quite a bind" by forcing them to choose between violating federal law requiring the state "to advise the district court whether the prisoner has, in fact, exhausted all available state remedies," Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987), and ignoring their obligations under state law to present a correct procedural default theory in state court. Dis-sen~ting op. at 1043. We respectfully fail to see this "bind." The state's true position was that Russell did not fall within the Taylor exception. Thus, in the state's view, there was no remedy available to the defendant. The state should have told the district court that such was the state's view-not that the defendant did have an adequate and available remedy in the state courts. This strikes us not only as appropriate, but also easy and obvious. Certainly it does not put the state in a bind. The duty of states as described in Gran-berry to advise district courts as to whether state remedies have been exhausted is best met with candor, not misdirection. A state under these circumstances misleads a district court by mentioning only that portion of its views that favors the immediate result it seeks, and the upshot is to whipsaw the petitioner back and forth between two court systems.

We also disagree with the dissent’s apparent view that estoppel does not bar a state from advancing a procedural argument in federal court that is contrary to the arguments it previously advanced in that court. The order of events in this regard strikes us as irrelevant. The dissent argues that there was a change in circumstances between the time of the first and second representations, i.e., the state courts had now spoken on the subject. Dissenting op. at 1043. Of course there was a change in circumstances! The state prevailed by telling the state court the opposite of what it told the federal court. The proposition that the state can be es-topped from relying on the advantage it gained by doing so seems unremarkable.

Moreover, and with all respect to the Washington state courts, whether or not in their view the state was precluded from advancing an argument before them has scant bearing on whether the federal courts can protect the integrity of the federal system by preventing the state from taking advantage of a state decision it secured by telling the state court the opposite of what it told the federal court. Each court, state and federal, is entitled to have whatever rules of judicial estoppel it considers necessary to protect its dignity and it system of justice. That Washington may have a more limited or different view of judicial estoppel does not preclude us from determining what rule is appropriate for our purposes.

Having persuaded the district court to deny appellant federal review on the ground that he had an “adequate and available” state remedy, the state cannot now be permitted to oppose appellant’s petition for relief on the theory he was actually procedurally barred in state court.⁶ Because of the contradictory positions taken by the state, we hold in the alternative that the state is estopped from arguing in federal court that Russell’s claims are procedurally barred. The state’s attempt to argue that its positions were not contradictory is not persuasive.

REVERSED and REMANDED for a determination on the merits.

1 . A fourth issue, which alleged a violation of the Constitution based on the cumulative effect of the first three violations, was also found to be procedurally barred by the court of appeals.

2 . Russell contends this statement constitutes a determination on the merits. The state responds that the statement is dicta, and no more than an application of the required “ends of justice" test.

3 .Taylor only bars issues which have been “heard and determined” by the reviewing court. The record shows that Russell’s present claims were not presented to the Washington Supreme Court as part of his direct appeal. Thus, the Washington Supreme Court, unlike the state court of appeals, cannot have rejected Russell's claims on Taylor grounds.

4 . A magistrate so concluded in this case.

5 . State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980) held that in a habitual criminal proceeding, the defendant could challenge the use of a prior conviction based on a guilty plea to prove his habitual criminal status on the basis that the prior guilty plea was constitutionally defective.

6 . The fact that the earlier representation was made by the attorney general's office and the latter by the King County prosecuting attorney is irrelevant — they were both speaking for the same party.