What is the legal test for a failure to exhaust?

This court recently returned a case to the district court for an investigation into the reasons for the failure to exhaust with reference to specific questions which appeared to have been raised for the first time in federal court. See Ventura v. Cupp, 690 F.2d 740, (9th Cir., 1982). In Ventura, however, the record revealed that different issues had been raised by the petitioner at different levels of review, and no explanation for the failure to exhaust could be found in the record.

In our case, the reason for the petitioner's failure to exhaust appears to be neglect upon the part of counsel. In light of the practice that had grown up (state acquiescence in the failure to appeal, and the state's participation in the representation to the district court that state remedies in fact had been exhausted), the neglect may be excusable. Clearly there was no deliberate bypass as that term is usually understood. Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963). ²