United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-1215

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Anthony M. Dixon,

Appellant,

v.

Dave Dormire, Superintendent,

Appellee.

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No. 00-1907

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George J. L. Barton, 

Appellant, 

v.

James Gammon,

Appellee.

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Appeals from the United States

District Court for the

Western District of Missouri.
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No. 00-2047

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Freddie C. Russell, *

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Appellant, *

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v. *

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Mike Kemna; Jeremiah (Jay) *

Nixon, Attorney General *

State of Missouri, *

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Appellees. *

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Submitted: January 12, 2001

 Filed: August 20, 2001

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

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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. §
3

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
4

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. 
5

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
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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
1The 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)). 

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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
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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
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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. 
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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. 
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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,
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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
2We 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.

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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
3Prospectively, 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. 

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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.