                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT



      ________________

      No. 00-1215
      ________________

Anthony M. Dixon,
                                    *
            Appellant,              *
                                    *
      v.                            *
                                    *
Dave Dormire, Superintendent,       *
                                    *
            Appellee.               *
                                    *

      ________________
                                          Appeals from the United States
      No. 00-1907                         District Court for the
      ________________                    Western District of Missouri.

George J. L. Barton,                *
                                    *
            Appellant,              *
                                    *
      v.                            *
                                    *
James Gammon,                       *
                                    *
            Appellee.               *
                                    *
      ________________

      No. 00-2047
      ________________

Freddie C. Russell,                     *
                                        *
            Appellant,                  *
                                        *
      v.                                *
                                        *
Mike Kemna; Jeremiah (Jay)              *
Nixon, Attorney General                 *
State of Missouri,                      *
                                        *
            Appellees.                  *



                               ________________

                               Submitted: January 12, 2001
                                   Filed: August 20, 2001
                               ________________

Before WOLLMAN, Chief Judge, HANSEN and MURPHY, Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

      Anthony M. Dixon, George J. L. Barton, and Freddie C. Russell appeal district
court orders denying their motions for habeas corpus relief pursuant to 28 U.S.C. §

                                        2
2254. In each case, the district court found that the claims the petitioner raised were
barred because the petitioner had not pursued them by seeking discretionary review
before the state’s highest court. We reverse and remand for further consideration.

                                           I.

       A Missouri state court jury convicted Anthony Dixon of two counts of robbery
in the first degree, forcible rape, forcible sodomy, and two counts of armed criminal
action. The state trial court sentenced him to life in prison plus a term of 60 years.
Dixon appealed his convictions. Dixon also filed a Missouri Supreme Court Rule
29.15 motion for postconviction relief, which was denied, and he appealed that ruling
as well. The Missouri Court of Appeals heard the consolidated appeal and affirmed
both the convictions and the denial of postconviction relief. See State v. Dixon, 969
S.W.2d 252 (Mo. Ct. App. 1998).

       Pursuant to Missouri Supreme Court Rules 83.02 and 83.04 (2001), a defendant
may apply to transfer his case to the Supreme Court of Missouri seeking its
discretionary review following the disposition of the Missouri Court of Appeals. Dixon
chose not to file a motion for discretionary review but instead filed a federal habeas
petition pursuant to 28 U.S.C. § 2254, raising six issues. At that time, our circuit had
decided that the exhaustion doctrine did not require a state prisoner to seek
discretionary review prior to filing for federal habeas relief. See Dolny v. Erickson,
32 F.3d 381 (8th Cir. 1994), cert. denied, 513 U.S. 1111 (1995), abrogated by
O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Subsequent to the filing of Dixon’s
federal habeas petition, the Supreme Court of the United States decided, contrary to our
holding in Dolny, that the exhaustion doctrine does require a state prisoner to file for
any available discretionary review in the state’s highest court prior to filing for federal
habeas relief. O’Sullivan, 526 U.S. at 847-48. Relying on O’Sullivan, the district court
dismissed Dixon’s habeas petition with prejudice, concluding that Dixon’s failure to
seek discretionary review from the Supreme Court of Missouri amounted to a

                                            3
procedural bar under the exhaustion doctrine. The court also concluded that Dixon’s
claim of ineffective assistance of counsel was not cause to excuse the default because
he was not entitled to counsel in post conviction proceedings, and that no fundamental
miscarriage of justice occurred because Dixon failed to show that he was actually
innocent of the crimes for which he was convicted.

       A Missouri state court jury convicted appellant George J. L. Barton of first
degree burglary and attempted forcible sodomy, and the state trial court sentenced him
to consecutive terms of five and fifteen years of imprisonment. Barton raised three
issues on direct appeal. The Missouri Court of Appeals affirmed the convictions in an
unpublished order dated January 6, 1998. Like Dixon, Barton did not file a motion to
transfer to the Supreme Court of Missouri but instead filed a federal habeas corpus
petition raising five issues. The district court dismissed the petition with prejudice,
concluding that Barton’s failure to file a motion to transfer seeking the discretionary
review of the Supreme Court of Missouri amounted to a procedural bar, citing
O’Sullivan. The district court noted that Barton stated no cause to excuse his default
and that no fundamental miscarriage of justice occurred.

       A Missouri state court jury convicted appellant Freddie C. Russell of four felony
counts of delivering marijuana, and the state trial court sentenced him to a term of 40
years of imprisonment. The Missouri Court of Appeals affirmed his convictions. State
v. Russell, 941 S.W.2d 11 (Mo. Ct. App. 1997). Pursuant to Missouri Supreme
Court Rule 29.15, he filed a motion for postconviction relief, which the trial court
denied, and the Missouri Court of Appeals affirmed the denial. Russell then raised
seven claims for relief in his federal habeas petition. The district court disposed of one
ground on the merits and denied the remaining six claims as procedurally defaulted
under O’Sullivan because Russell had failed to seek a discretionary transfer of these
claims to the Supreme Court of Missouri . The district court also concluded that
ineffective assistance of counsel was not cause to excuse the default and that no
fundamental miscarriage of justice occurred.

                                            4
        Dixon, Barton, and Russell (hereinafter “the Petitioners”) were each granted a
certificate of appealability on the question of whether the respective district courts
correctly concluded that their claims were procedurally barred in light of the Supreme
Court’s O’Sullivan opinion. We consolidated their appeals. Because the issues raised
all deal with the district courts’ applications of the O’Sullivan case, we are concerned
only with questions of law, to which we apply a de novo standard of review. See
Juarez v. Minnesota, 217 F.3d 1014, 1016 (8th Cir. 2000).

                                          II.

        It is well established that the exhaustion doctrine, now codified, precludes the
issuance of a writ of habeas corpus to a state prisoner on a claim for which that
prisoner has not “exhausted the remedies available” in the state courts. 28 U.S.C. §
2254(b)(1)(A), (c) (1994 & Supp. IV 1998). “The purpose of exhaustion is not to
create a procedural hurdle on the path to federal habeas court, but to channel claims
into an appropriate forum, where meritorious claims may be vindicated and unfounded
litigation obviated before resort to federal court.” Keeney v. Tamayo-Reyes, 504 U.S.
1, 10 (1992). While the exhaustion doctrine does not require a petitioner to file
repetitive petitions in state court or to invoke “extraordinary remedies” outside the
standard review process where relief has not been provided in the past, it does require
a state prisoner to “give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” See O’Sullivan, 526 U.S. at 844-45. The Supreme Court
has clarified that in order to invoke “one complete round” of available state court
remedies prior to filing for federal habeas corpus relief, a state prisoner must seek the
discretionary review of the state supreme court when that review is part of the ordinary
and established appellate review process in that state. Id. at 845, 847. None of the
Petitioners in this consolidated appeal sought discretionary review in the Supreme
Court of Missouri before filing their petitions for federal habeas corpus relief, and the


                                           5
time for doing so under state law has expired. For various reasons, they contend that
the holding of the O’Sullivan case should not apply to them.

                                          A.

       The Petitioners first argue that a motion to transfer a case for discretionary
review by the Supreme Court of Missouri under Missouri law is not equivalent to the
type of discretionary review existing in Illinois law, which the Supreme Court declared
to be necessary for exhaustion in O’Sullivan. The Supreme Court emphasized in
O’Sullivan that the exhaustion doctrine “turns on an inquiry into what procedures are
‘available’ under state law.” 526 U.S. at 847. We must therefore carefully consider
what procedures are part of Missouri’s established appellate review process in order
to determine what procedures are “available” and therefore must be exhausted prior to
bringing a federal habeas claim pursuant to 28 U.S.C. § 2254.

       Missouri law creates a two-tiered appellate review process similar to that
existing in Illinois law, which was the subject of the O’Sullivan case. Missouri
Supreme Court Rules 83.02 and 83.04 provide that a case disposed of by an opinion
of the Missouri Court of Appeals may be transferred to the Supreme Court of Missouri
by application of a party in certain circumstances. Specifically, “[t]ransfer may be
ordered because of the general interest or importance of a question involved in the case
or for the purpose of reexamining existing law.” Mo. Sup. Ct. R. 83.02 (2001).
Additionally, a majority of the Missouri Court of Appeals may transfer a case on its
own motion, Mo. Sup. Ct. R. 83.02; a dissenting judge of the court of appeals may
transfer a case, Mo. Sup. Ct. R. 83.03; or the Supreme Court of Missouri may
transfer a case on its own motion prior to disposition in the court of appeals, Mo. Sup.
Ct. R. 83.01.

     The Petitioners argue that a discretionary transfer to the Supreme Court of
Missouri was not truly “available” to them because their cases did not meet the criteria

                                           6
listed in the rule as necessary to properly apply for a transfer. See Mo. S. Ct. R.
83.02. We disagree. We acknowledge that Missouri’s rule is not on all fours with the
Illinois rule, but the crucial inquiry under O’Sullivan involves whether the state
supreme court has retained the opportunity to decide which cases to hear on the merits
or whether the state’s rules indicate that discretionary review by the state’s highest
court is not within the ordinary appellate review process. 526 U.S. at 846-48. The
Illinois rule at issue in O’Sullivan allowed an application to transfer for discretionary
review by the Illinois Supreme Court for the same type of reasons as the Missouri rule,
but it specifically noted that the reasons enumerated in the rule “neither control[] nor
fully measur[e] the court’s discretion.”1 526 U.S. at 843 (quoting Ill. Sup. Ct. R.
315(a)). The Supreme Court noted that by the Illinois rule’s own terms, its criteria do
not control the state supreme court’s discretion: “The Illinois Supreme Court is free
to take cases that do not fall easily within the descriptions listed in the Rule.” Id. at
846. Because the Illinois Supreme Court has retained the opportunity to decide which
cases it will hear on the merits, the Supreme Court held in O’Sullivan that it could not
conclude that discretionary review was unavailable for purposes of the exhaustion
doctrine. Id.

      Missouri’s rule is somewhat more limited than the Illinois rule, but we are
nevertheless convinced that the Supreme Court of Missouri still retains the opportunity


      1
       The rule governing discretionary review in Illinois states as follows:

      The following, while neither controlling nor fully measuring the court’s
      discretion, indicate the character of reasons which will be considered: the
      general importance of the question presented; the existence of a conflict
      between the decision sought to be reviewed and a decision of the
      Supreme Court, or of another division of the Appellate Court; the need for
      the exercise of the Supreme Court’s supervisory authority; and the final
      or interlocutory character of the judgment sought to be reviewed.

O’Sullivan, 526 U.S. at 843 (quoting Ill. Sup. Ct. R. 315(a)).
                                           7
to decide which cases it will hear on the merits. We agree with the Petitioners’
contention that a state prisoner applying for discretionary review in Missouri must be
able to couch his issues in the terms enumerated in the rule in order to file a proper
application for transfer to the Supreme Court of Missouri and that the Missouri rule
does not specifically preserve that court’s discretion to review cases that do not fall
within those listed descriptions, as does the Illinois rule. Nevertheless, like the rule
in Illinois, the language of the Missouri rule permits a transfer “because of the general
interest or importance of a question.” Mo. Sup. Ct. R. 83.02. This states a rather
broad and subjective eligibility criteria, which is not, in our opinion, so limited or strict
as to render a transfer unavailable to most litigants.

       In O’Sullivan, the Supreme Court stated that “even if we were to assume that the
Rule discourages the filing of certain petitions, it is difficult to discern which cases fall
into the ‘discouraged’ category.” 526 U.S. at 846. The same can be said of Missouri’s
rule given the broad language of Missouri’s listed eligibility criteria for filing a motion
to transfer. Missouri’s rule allows a motion for transfer in cases that can honestly
assert some “general interest or importance of a question.” Mo. Sup. Ct. R. 83.02.
Determining which cases meet this broad criteria is within the Supreme Court of
Missouri’s discretion. It would be difficult for us to determine in each case whether
a motion for transfer could have been properly filed. Out of our respect for principles
of federalism and comity, we respectfully decline to take upon ourselves the decision
in each case of discerning whether a petitioner’s claims fit within the broad eligibility
criteria of Missouri’s transfer rules. Our exhaustion doctrine involves determining what
relief was available to a petitioner, not guessing at what the state supreme court would
have considered to be a proper application for transfer in an individual case. We leave
as we must to the Supreme Court of Missouri the discretionary call of determining
which Missouri cases have stated a proper application to transfer under that court’s
own rules. Also, the appropriate question for us is not whether the Supreme Court of
Missouri would exercise or should have exercised its jurisdiction to entertain a


                                             8
particular case, but whether the opportunity to file for this remedy was generally
available to the Petitioners. We conclude that it was.

        If the Missouri courts do not wish to make this discretionary review remedy
generally available to state prisoners, then a clear statement of that intent must be
made. Nothing in Missouri law plainly states that a transfer to the Supreme Court of
Missouri is an extraordinary remedy outside the standard review process. See
O’Sullivan, 526 U.S. at 850 (Souter, J., concurring) (highlighting that the Court left
open the possibility that a prisoner may skip a procedure for review that “the State has
identified as outside the standard review process”); see also id. at 848 (holding “the
creation of a discretionary review system does not, without more, make review in the
[state supreme court] unavailable”). To the contrary, the right to invoke the
discretionary jurisdiction of the Supreme Court of Missouri as provided in the rule is
guaranteed by the Missouri Constitution. Mo. Const. art. 5, § 10 (“Cases pending
in the court of appeals may be transferred to the supreme court . . . before or after
opinion because of the general interest or importance of a question involved in the case,
or for the purpose of reexamining the existing law, or pursuant to supreme court rule.”).
The Missouri Court of Appeals has expressly noted, “No conclusion we reach nor any
action we take can become final without affording the defendant a fair opportunity to
invoke the jurisdiction of the highest court of this State, and the right to invoke the
jurisdiction of that court is guaranteed by the Constitution of this State.” Mercer v.
State, 666 S.W.2d 942, 944 (Mo. Ct. App. 1984). If Missouri had articulated a clear
intention to place discretionary review by its Supreme Court outside the ordinary and
established review process for persons convicted in Missouri state courts, we would
not be at liberty to ignore that intent. O’Sullivan, 526 U.S. at 847-48 (stating that
courts may not “ignore any state law or rule providing that a given procedure is not
available”). At this time, however, Missouri has not clearly stated an intent to remove
discretionary review by its highest court from the ordinary and established review
process.


                                           9
       The Petitioners cite a handful of unpublished orders of the Supreme Court of
Missouri, stating in other cases that “transfer is not an available procedure unless there
is a proper application for transfer” and that “[i]f grounds for transfer do not exist, the
court of appeals[’] decision is final and the defendant has exhausted his state
remedies.” (Dixon’s Adden. at 112, 114; Barton’s Adden. at A6, A8, A10, A12, A14.)
In each of the orders cited, it appears that a transfer was sought not on the basis of any
grounds enumerated in the rule but solely and expressly for the purposes of exhausting
state remedies under O’Sullivan. Certainly, a petitioner must be able to couch his
motion for transfer within the broad factors enumerated in the rule in order to state a
proper application for transfer. To place a remedy within the realm of the
extraordinary, however, there must be a clear indication that the standard process is
complete prior to evoking that remedy.

        Justice Souter’s concurring opinion in O’Sullivan cites to a published order of
the Supreme Court of South Carolina, which clearly states that once a “claim has been
presented to the Court of Appeals or the Supreme Court, and relief has been denied,
the litigant shall be deemed to have exhausted all available state remedies.” 526 U.S.
at 849 (Souter, J., concurring and quoting in re Exhaustion of State Remedies in
Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (1990)). Similarly, the
Ninth Circuit noted that discretionary relief did not need to be exhausted where the
Arizona Supreme Court has expressly stated that “[o]nce the defendant has been given
the appeal to which he has a right, state remedies have been exhausted.” Swoopes v.
Sublett, 196 F.3d 1008, 1011 (9th Cir. 1999) (internal quotations omitted), cert.
denied, 529 U.S. 1124 (2000). The Supreme Court of Missouri’s statements in the
above-quoted unpublished orders leave open the possibility that a prisoner may file an
application for transfer as part of the ordinary review process as long as the application
is presented within the broad criteria stated in the rule. Because there is no clear
statement from the Supreme Court of Missouri that the ordinary process is complete
once a claim has been initially presented to the Missouri Court of Appeals and a
decision rendered, the transfer process remains an available remedy.

                                            10
       Thus, we conclude that the exhaustion principle announced in O’Sullivan – that
a state prisoner must exhaust discretionary review of the state’s highest court unless
that review has been declared not to be part of the state’s ordinary appellate process–
requires Missouri prisoners to seek a transfer for discretionary review by the Supreme
Court of Missouri because Missouri law has not removed discretionary review from its
ordinary and established appellate review process.

                                           B.

        Although the principle announced in O’Sullivan applies to Missouri law as
currently written and interpreted, we are persuaded by the Petitioners’ claim that the
failure to exhaust defense should not be applied to them because they bypassed the
opportunity to apply for discretionary review before the Supreme Court filed its
O’Sullivan opinion in reliance on the State’s prior and consistent position that the
available but unapplied for discretionary review would not be asserted as a defense to
their claims in federal court. Now the State’s position has changed. A state procedural
rule only prevents federal review where it is “a firmly established and regularly
followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (internal
quotations omitted). The Supreme Court has said that “state procedural rules not
strictly or regularly followed may not bar our review.” Id. at 424 (internal quotations
omitted).

       The Petitioners assert, and the State does not deny, that for eight consecutive
years the State consistently chose not to assert a failure to seek discretionary review
as an exhaustion defense in federal habeas cases. Specifically, until the Supreme
Court’s O’Sullivan opinion was rendered in 1999, the State had not asserted this
defense since 1991, when the State conceded that no failure to exhaust arises in this
context, see Evans v. Dowd, 932 F.2d 739, 741 (8th Cir.), cert. denied, 502 U.S. 944
(1991). Thus, even before we decided the issue in a 1994 Minnesota case, where we
specifically noted that up until then the issue “remain[ed] open in this circuit,” Dolny,

                                           11
32 F.3d at 383, the Missouri Attorney General had not strictly or regularly asserted that
a state prisoner must seek discretionary review in the Supreme Court of Missouri in
order to exhaust his available state court remedies.

       We are mindful of our duty to apply the law as it exists at the time of our review.
See Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414 (1972) (stating that courts
must review the district court’s judgment in light of the law as it now stands). The
Supreme Court has previously instructed that “[w]hen this Court applies a rule of
federal law to the parties before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still open on direct review and
as to all events, regardless of whether such events predate or postdate our
announcement of the rule.” Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97
(1993). The exhaustion doctrine is codified in 28 U.S.C. § 2254(b)(1), (c), and has
long required a state prisoner to raise his claims “by any available procedure” in the
state courts. “‘It is the Supreme Court’s responsibility to say what a statute means,’
and a ‘judicial construction of a statute is an authoritative statement of what the statute
meant before as well as after the decision of the case giving rise to that construction.’”
Mayberry v. United States, 151 F.3d 855, 860 (8th Cir. 1998) (quoting Rivers v.
Roadway Express, Inc., 511 U.S. 298, 312-13 (1994), and alterations omitted). Where,
as here, there has been no change in the law, we must give effect to the Supreme
Court’s enunciation of what the statute has always meant, id., even though our circuit
precedent may have been otherwise when this dispute arose, see Rivers, 511 U.S. at
312.

       Nevertheless, we conclude that justice dictates a different outcome for the cases
at hand because the State has not consistently asserted that the failure to seek a
discretionary transfer is a bar to federal habeas relief. Although discretionary review
was “available” through a motion to transfer, and the Petitioners were aware of their
right to apply for a transfer to the state supreme court, the Petitioners in this case
reasonably relied on Missouri’s “firmly established and regularly followed state

                                            12
practice” of not asserting the failure to seek discretionary review as a bar. Ford, 498
U.S. at 423-24. “This is not a case . . . of a defendant attempting to circumvent . . . a
firm state procedural rule.” James v. Kentucky, 466 U.S. 341, 350 (1984). The
Petitioners are caught in a classic Catch-22 situation where the State had lulled them
to believe that it would not assert a failure to seek discretionary review as a defense in
federal court, and now that the time for seeking discretionary review has expired and
the Supreme Court of the United States has ruled that the failure to seek discretionary
review is a bar, the State raises it.2 Having relied on the State’s regular and
acknowledged practice of not asserting this defense, the Petitioners bypassed an
otherwise available state remedy that they reasonably believed was inapplicable to
them and unnecessary to exhaustion.

        Now that the Supreme Court has clarified that the exhaustion doctrine requires
a petitioner to seek this type of discretionary review, the State understandably relies on
current Supreme Court precedent to assert the statutory bar. We do not imply that this
is itself improper; we hold only that the exhaustion doctrine should not be applied in
these cases because these particular Petitioners had no reasonable notice that the State
would change horses in midstream and assert the Petitioners’ failure to seek
discretionary review in state court as a defense to their federal habeas claims.
“[U]nexpectable state procedural bars are not adequate to foreclose federal review of
constitutional claims.” Easter v. Endell, 37 F.3d 1343, 1346 (8th Cir. 1994); see also
Ford, 411 U.S. at 423 (noting state procedural rules should not be applied where the
defendant could not be deemed to have been apprised of its existence). The Petitioners
were aware of the discretionary transfer rules, but they were also aware of the State’s
consistent position that the failure to seek discretionary review in the Supreme Court

      2
         We do not mean to criticize the State for its earlier actions. We had held
ourselves that discretionary review of this sort was not really “available” because very
few petitions for discretionary review were actually granted and the remedy was not
truly available because it was likely to be fruitless. See Dolny, 32 F.3d at 384. We
also, it turns out, were wrong.
                                           13
of Missouri was not a bar to federal habeas relief. Thus, the Petitioners were not fairly
apprised that their decision to bypass this state appellate procedure would be used
against them in federal court.

       Because we hold that it is improper in these cases to bar the claims based upon
the Petitioners’ failure to seek discretionary review in the state supreme court, there is
no need for the Petitioners to demonstrate any cause and prejudice to overcome it.3

                                           III.

       Accordingly, we reverse and remand for consideration of the merits of the
Petitioners’ claims. We deny all pending motions to supplement the record.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      3
       Prospectively, after O’Sullivan, it will be absolutely necessary for Missouri
prisoners to file a motion to transfer to the Supreme Court of Missouri in order to
exhaust their state remedies before repairing to the federal district court for federal
habeas relief, unless, of course, the Supreme Court of Missouri clearly determines
otherwise, ala South Carolina and Arizona.
                                           14
