                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3559
                                   ___________

Anthony Criswell,                       *
                                        *
             Appellant,                 *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Tony Gammon, Superintendent;            * Western District of Missouri.
Jeremiah (Jay) Nixon, Attorney          *
General, State of Missouri;             *    [UNPUBLISHED]
Steve Moore,                            *
                                        *
             Appellees.                 *
                                   ___________

                          Submitted: September 4, 2001
                              Filed: September 6, 2001
                                  ___________

Before HANSEN, FAGG, and BEAM, Circuit Judges.
                            ___________

PER CURIAM.

       In 1993, a Missouri state court jury convicted Criswell of second-degree
burglary. The state trial court sentenced him to 16 years imprisonment, and denied his
motion for postconviction relief. The Missouri Court of Appeals affirmed, see State
v. Criswell, 907 S.W.2d 303 (Mo. Ct. App. 1995), and Criswell did not seek to transfer
his case for discretionary review by the Missouri Supreme Court. Instead, he filed a
28 U.S.C. § 2254 petition for a writ of habeas corpus in federal court.
       After Criswell filed his federal habeas petition, the United States Supreme Court
decided that the exhaustion-of-state-remedies 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. See O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). On
this basis, the district court dismissed Criswell’s habeas corpus petition with prejudice,
concluding that his failure to seek discretionary review by the Missouri Supreme Court
constituted procedural default because the time for seeking such review had expired.
The district court granted Criswell a certificate of appealability on the issue of the
applicability of O’Sullivan.

       For the reasons stated in Dixon v. Dormire, Nos. 00-1215/1907/2047, 2001 WL
935877, at *5-7 (8th Cir. Aug. 20, 2001), we hold that O’Sullivan does not prevent the
district court from considering Criswell’s habeas petition because, between 1991 and
1999, the state consistently elected not to assert the failure to seek discretionary review
as a defense in federal habeas cases. Accordingly, we reverse and remand to the
district court for consideration of the merits of Criswell’s claims in the first instance.

      A true copy.

             Attest:

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




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