Morrison v. Mahoney
No. 03-35161 (2-23-05). Petitioner "won" on a previous appeal on the issue of equitable tolling. The case goes back to the federal district court, where the state now raises procedural default. The petitioner argues that, hey, the state waived this defense when it asserted equitable tolling, and when it submitted a filing that the case could stay in federal court. The 9th held that the state didn't waive its procedural challenges when it took the case up, and that the remand puts things back as if new. (This case has language about remands that might be useful if we wish to raise issues).