                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 99-2377
                                 ________________

Michael R. Shands, Jr.,                    *
                                           *
      Appellant,                           *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Eastern District of Missouri.
James Purkett,                             *
                                           *
      Appellee.                            *

                                 ________________

                                 Submitted: February 16, 2000
                                     Filed: May 1, 2000
                                 ________________

Before BOWMAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                 ________________

HANSEN, Circuit Judge.

      Michael Shands appeals the district court's denial of his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. We dismiss the appeal and remand
with instructions to the district court to dismiss the § 2254 petition without prejudice
in order to allow Shands the opportunity to exhaust his claim in a state habeas
proceeding.
                                             I.

       On August 11, 1993, a jury found Shands guilty of stealing over $150. Shands
was sentenced to a term of 15 years in the Missouri Department of Corrections on
October 29, 1993. Shands failed to file a notice of appeal within the ten-day period for
seeking a direct appeal (see Missouri Supreme Court Rule 30.01) and failed to file a
motion for postconviction relief under Missouri Supreme Court Rule 29.15. In
addition, he failed to seek leave to file an appeal out-of-time pursuant to Missouri
Supreme Court Rule 30.03. Shands filed a petition for federal habeas corpus review
under 28 U.S.C. § 2254, claiming ineffective assistance of counsel. Shands alleges that
his attorney, who was retained for the purpose of handling "his direct appeal and any
post conviction actions" (see Appellant's Br. at 8), failed to file any appeal or
postsentencing actions and failed to inform Shands that he was not going to file a notice
of appeal. The district court denied Shand's § 2254 petition because he had
procedurally defaulted his claim of ineffective assistance of counsel by failing to file
a motion for postconviction relief under Rule 29.15. The district court dismissed the
claim with prejudice, and Shands filed his notice of appeal. This court granted his
application for a certificate of appealability.

                                            II.

        More than three months after the district court's denial of the § 2254 petition, the
Missouri Court of Appeals for the Eastern District held that an attorney's abandonment
of a defendant in a criminal case by failing to file a timely notice of appeal is a "rare
and exceptional circumstance" that rises to a level of manifest injustice excusing the
criminal defendant's failure to raise his claims on direct appeal or in a postconviction
proceeding. State ex rel. Hahn v. Stubblefield, 996 S.W.2d 103, 108 (Mo. Ct. App.
1999). In such circumstances, the criminal defendant is entitled to seek state habeas
relief under Missouri Supreme Court Rule 91. See id. According to the state, Missouri
courts have not previously recognized the availability of a Rule 91 state habeas

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proceeding to bring such a claim. Consequently, the state recommends that we dismiss
the appeal and remand the case with instructions to dismiss the § 2254 petition for lack
of exhaustion.

       At oral argument we expressed concern that if we agreed to the state's request,
Shands might encounter a statute of limitations obstacle when he later seeks to file a
new § 2254 petition in the district court, assuming he does not succeed in state court.
The state assured us that it would not assert a statute of limitations defense. Based on
the representations made by the state at oral argument, which we have transcribed from
the tape of oral argument, we agree with the state that the case should be remanded in
order to allow Shands the opportunity to pursue his claims in state court.

                                          III.

       Accordingly, we dismiss the appeal and remand with instructions to the district
court to dismiss the § 2254 petition without prejudice.

      A true copy.

             Attest:

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




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