                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 00-2725
                                 ________________

Charles Q. Moore,                          *
                                           *
             Appellant,                    *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Western District of Missouri.
Al Luebbers, Superintendent,               *
                                           *             [PUBLISHED]
             Appellee.                     *

                                 ________________

                                 Submitted: April 13, 2001
                                     Filed: August 20, 2001
                                 ________________

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

HANSEN, Circuit Judge.

       Charles Moore appeals the district court’s denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. We reverse and remand for further proceedings.

       A Missouri state court jury convicted Moore of two counts of first degree murder
and two counts of armed criminal action. The state trial court sentenced Moore to two
concurrent life sentences for the murder convictions and two concurrent life sentences
for the armed criminal action convictions. Moore appealed to the Missouri Court of
Appeals, which affirmed his convictions and sentences. State v. Moore, 949 S.W.2d
629 (Mo. Ct. App. 1997). Moore did not seek to transfer his case for discretionary
review by the Supreme Court of Missouri. The state trial court then denied his motion
for postconviction relief, and the Missouri Court of Appeals affirmed the trial court’s
judgment. Again, Moore did not file a motion to transfer seeking discretionary review
by the Supreme Court of Missouri. Instead, he filed a pro se petition for a writ of
habeas corpus in federal court, alleging a claim of ineffective assistance of counsel.
See 28 U.S.C. § 2254.

       Subsequent to Moore’s filing of his federal habeas petition, the Supreme Court
of the United States decided that the exhaustion doctrine requires 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 v. Boerckel, 526 U.S. 838, 847-48 (1999). Relying
on O’Sullivan, the district court dismissed Moore’s habeas corpus petition with
prejudice, concluding that his failure to seek discretionary review by the Supreme Court
of Missouri amounted to a procedural default because the time for seeking such review
had passed. The district court also concluded that Moore had failed to allege grounds
sufficient to constitute cause and prejudice or actual innocence to overcome the default.



       The district court granted a certificate of appealability on the question of whether
the holding of the Supreme Court’s O’Sullivan opinion should apply to bar review of
Moore’s claim for habeas relief. We have considered Moore’s arguments and conclude
that his case is controlled by Dixon v. Dormire, Nos. 00-1215/00-1907/00-2047 (8th
Cir. 2001), filed simultaneously with this decision. In Dixon, we concluded that the
O’Sullivan opinion requires Missouri prisoners to seek a discretionary transfer to the
Supreme Court of Missouri. Nevertheless, we did not allow the State to assert an
exhaustion or procedural default defense in that case because, although the prisoners
had failed to exhaust discretionary review, they had bypassed this available remedy
before O’Sullivan was filed and in reliance on the State’s prior and consistent position
that such a transfer was not necessary to exhaustion and would not be asserted as a

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defense against claims brought in federal court. Id. Our reasoning was based on Ford
v. Georgia, 498 U.S. 411, 423-24 (1991), where the Court stated that only a “firmly
established and regularly followed state practice” will bar federal court review. There
was no firmly established state practice in Missouri of insisting on the exhaustion of
discretionary review; to the contrary, the State had consistently asserted that the
exhaustion of discretionary review was unnecessary.

        For the reasons stated in our Dixon opinion, we hold that O’Sullivan v. Boerckel
does not prevent the district court from considering Moore’s habeas petition in this
instance because the State has not previously “strictly or regularly” relied on the default
of this state procedure to bar federal review. See Ford, 498 U.S. at 424. Accordingly,
we reverse and remand to the district court for consideration of the merits of Moore’s
claim.

      A true copy.

             Attest:

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




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