Eddie Randolph appeals the district court’s order denying his petition for habe-as corpus relief pursuant to 28 U.S.C. § 2254. The district court found that all the claims presented for review in this appeal were procedurally defaulted. We reverse and remand with instructions that the district court consider those claims on the merits.
I.
Randolph was convicted in 1995 in Missouri state court of second degree manslaughter and armed criminal action. He was sentenced to two consecutive life terms. The Missouri Court of Appeals affirmed his convictions and sentences on July 15, 1997. Following the court of appeals’ denial of Randolph’s motion for rehearing by or transfer within the court of appeals, Randolph raised one issue in a petition for transfer to the Missouri Supreme Court. The supreme court denied his petition. Randolph then filed a
pro se
§ 2254 petition for a writ of habeas corpus in the United States District Court for the Western District of Missouri. The district court ruled that Randolph had procedurally defaulted any grounds he did not raise in his motion for transfer to the Missouri Supreme Court. The district court considered the remaining argument on the merits and denied Randolph’s request for a writ. Randolph requested a rehearing or, in the alternative, a certificate of appealability. The district court refused the motion for rehearing, but granted a certificate of appealability on the sole issue of whether
O’Sullivan v. Boerckel,
II.
“We review the district court’s findings of fact for clear error and its conclusions of law
de novo.” Thomas v. Bowersox,
In
O’Sullivan,
the United State Supreme Court clarified the doctrine pertaining to whether a prisoner must pursue discretionary review to exhaust state court remedies before petitioning for habeas review under § 2254. The
O’Sullivan
Court stated that prisoners must give the state courts “one full opportunity to resolve any constitutional issue by invoking one complete round of the state’s established appellate review process.”
O’Sullivan,
We evaluated Missouri’s appellate review scheme under
O’Sullivan
in
Dixon v. Dormire. See also Moore v. Luebbers,
The State seeks to distinguish
Dixon
because the petitioners there did not pursue discretionary review on any of their claims, whereas Randolph did seek discretionary review of one of his claims. Thus, the State argues that Randolph clearly did not rely on the State’s practice; rather, he availed himself of it. We disagree. We based our decision in
Dixon
on two interrelated premises. First, “[a] state procedural rule only prevents federal review where it is ‘a firmly established and regularly followed state practice.’ ”
Dixon,
Some of the grounds have been fairly presented to the Missouri state court for resolution.... Petitioner’s first[,] ... *404 second, third and fourth grounds ... [were] presented ... on consolidated ap- ■ peal and they were resolved against petitioner by the Missouri Court of Appeals. These claims are exhausted. 2
(Resp. to Order to Show Cause at 3.) The State did not then argue that the claims were procedurally defaulted. It treated Randolph’s claims exactly as it treated those of prisoners who did not pursue transfer for discretionary review for any of their claims. Furthermore, the State drew no distinction between the claim on which Randolph moved for transfer to the supreme court and those on which he did not. The State will not now be heard to argue that the claims should be treated differently based on the possibility that Randolph only partially relied on past practice of the State.
Even if we did not believe that Dixon controls, the Missouri Supreme Court has recently shed light on its requirements for exhaustion of state remedies. On October 23, 2001, that court issued an order amending Supreme Court Rule 83.04, which governs petitions for transfer to the supreme court. That amendment adds the following sentence: “Transfer by this Court is an extraordinary remedy that is not part of the standard review process for purposes of federal habeas corpus review.”
O’Sullivan
held that where a state articulates that a certain avenue is not part of its appellate review process, it is not necessary that prisoners pursue that avenue.
See O’Sullivan,
The State argues that because the amendment to Rule 83.04 has an effective date of July 1, 2002, its invocation does not help Randolph. We disagree. The order recites that “In order to state the existing law in Missouri, the Court notes that transfer of a case from the court of appeals to this Court is an extraordinary remedy that is not part of the standard review process for the purposes of federal habeas corpus review.” The order further states that to “reflect this principle” the court would amend the existing rule.
In
Dixon,
we examined the language of Missouri’s party transfer rule in light of
O’Sullivan
and held that in order to exhaust state remedies, Missouri law required prisoners to pursue discretionary review by petitioning for transfer to the Missouri Supreme Court. In short order the Missouri Supreme Court has made it clear that the law of Missouri is otherwise. In
Dixon,
we stated that “[n]othing in Missouri law plainly states that a transfer to the Supreme Court of Missouri is an extraordinary remedy outside the standard review process.”
Dixon,
The judgment is reversed, and the case remanded for a hearing on the merits of Randolph’s unadjudicated claims.
Notes
. The State argues that the certificate of ap-pealability was improvidently granted. We disagree. Section 2253(c)(2) permits a court to issue a certificate when “the applicant has made a substantial showing of the denial of a constitutional right.” To meet what the Ninth Circuit has referred to as this “modest standard,”
see Charles v. Hickman,
. Randolph's initial § 2254 petition had additional grounds that he waived. The grounds to which the State referred are those that the district court eventually ruled upon either on the merits or by finding they were procedurally defaulted.