Oregon prisoner Leslie Whaley was released on parole, but the Oregon Board of Parole (Board) subsequently revoked parole and returned Whaley to prison to serve revocation sanctions, several times.
In 2002, Whaley appealed a Board order setting various parole conditions. While the challenge was pending in state court, in January 2003, the Board again revoked parole and imposed a 43-month prison term as a revocation sanction.
The Board then moved to dismiss Whaley’s parole condition challenge as moot based upon the revocation of parole. Whaley did not oppose the motion, and the Oregon Court of Appeals dismissed the appeal. Whaley also failed to appeal the dismissal to the Oregon Supreme Court.
Whaley filed a federal habeas corpus petition, but the Board moved to dismiss, arguing that Whaley procedurally defaulted his claim by failing to appeal the mootness dismissal to the Oregon Supreme Court. The district court agreed with the Board, denying the petition.
The Ninth Circuit reversed, noting that the Board moved to dismiss the state action on mootness grounds, yet “remarkably, the state now takes the position in its brief that Whaley’s claim was in fact not moot.” The Court also noted that “in now trying to prove that it was wrong in its representations to the Oregon Court of Appeals, the state goes so far as to assert that a prior Oregon case, Perdue v. Board of Parole and Post-Prison Supervision, 165 Or. App. 751 (2000), contradicts the position it took before the state court.”
The Court was deeply offended by the Board’s tactics, explaining that “the state did not mention Perdue, a case of which it was surely aware, as it had been a party to that proceeding only a short time earlier. By failing to do so, it violated the elementary rules of legal ethics.” Moreover, “the state’s position that its misrepresentation of the law provides the basis for precluding the victim of its ‘error’ from vindicating his constitutional rights is ‘chutzpah’ in the first degree, by any standard,” declared the Court. Worse yet, “during oral argument the state repeatedly attempted to evade the Court’s efforts to discern its current position with respect to whether Whaley’s claims were moot under Oregon law.”
Noting that judicial estoppel “‘is an equitable doctrine that is intended to protect the integrity of the judicial process by preventing a litigant from playing fast and loose with the courts.’ Wagner v. Prof’l Eng’rs in Cal. Gout., 354 G3d 1036, 1044 (9th Cir. 2004),” the Court acknowledged that “the doctrine applies to a party’s legal as well as factual assertions.” Citing Russell v. Rolfs, 893 F.3d 1033, 1037-38 (9th Cir. 1990) the Court held that it “may not allow the state to represent in federal court the opposite of what it represented to the state court when it succeeded in defeating Whaley’s claim.”
The Court reversed and remanded to the district court. “We cannot imagine that in this case the State will raise mootness at a subsequent time because it has already switched its position once and has, as we have pointed out, an ethical obligation to represent to the court its view of the law as it honestly perceives it,” suggested the Court. In any event, the Court determined that Whaley’s claim is not moot.
One judge dissented, claiming “ironically, it is the majority which plays fast and loose with the facts, as it manufactures the purported conflict in the state’s position.” See: Whaley v. Belleque, 520 F.3d 997 (9th Cir. 2008).
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Related legal case
Whaley v. Belleque
|Cite||520 F.3d 997 (9th Cir. 2008)|
|Level||Court of Appeals|