Morrison v. Mahoney, __ F.3d __, 2005 WL 418563 (9th Cir. Feb. 23, 2005) (state did not waive procedural default argument by moving to dismiss first petition on statute of limitations grounds, and then waiving that defense when the case was returned to the district court after a successful appeal; procedural default doctrine "bars federal habeas when a state court declined to address a prisoners federal claims because the prisoner had failed to meet a state procedural requirement." [Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotations omitted)]; the petitioner can avoid the effect of a procedural default by showing cause and prejudice or manifest injustice [Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307 (9th Cir. 1996)]; it must be raised by the government in its first responsive pleading, but the motion to dismiss was not a responsive pleading).