Appellant John Brown appeals the district court's dismissal of his habeas corpus petition for failure to exhaust available state remedies. Because, in the interim, the Missouri Supreme Court indicated that the state courts will afford Brown no further relief, we reverse the district court's determination as to exhaustion and remand for further proceedings.

Brown pled guilty to the capital murder of his girlfriend and received a life sentence without the possibility for probation or parole for fifty years. While assuring the court throughout the trial that his admission of guilt had been entered freely and voluntarily, Brown made an off-the-record statement after the pronouncement of sentence that "everything I have given is a lie. I didn't plan to kill her, * * *."

Brown filed a motion for post-conviction relief pursuant to Mo.R.Crim.P. 27.26,1 asserting that his statement in which he claims to have lied shows his guilty plea was not knowing, voluntary, and intelligent, and alleging ineffective assistance of counsel due to counsel's failure to inform him of the defense of diminished capacity. After the Missouri Court of Appeals denied him relief,2 Brown filed a Rule 83.02 motion in that court for rehearing or transfer to the Missouri Supreme Court. That motion argued the ineffective assistance of counsel claim but did not include the voluntariness argument. Brown then filed his application to transfer directly in the Missouri Supreme Court,3 again raising only the ineffective assistance of counsel question. The court denied that motion. Thereupon, Brown filed this petition for habeas corpus in the United States District Court for the Eastern District of Missouri. The district court held that because the motion for transfer to the Missouri Supreme Court presented only the ineffective assistance of counsel claim for review, petitioner's habeas writ contained unexhausted claims and must be dismissed. Approximately one and one-half months after the district court handed down its order, the Missouri Supreme Court clerk's office issued a letter declaring Brown's case closed by order of the Missouri Supreme Court. This appeal followed.

Brown potentially had state remedies available to him while his petition was pending before the district court. Those avenues are no longer open to him. As the State itself concedes, exhaustion is no longer an issue.4

The State, however, argues that this court should refuse to hear the merits of Brown's habeas claims because Brown's failure to advance the voluntariness claim before the Missouri Supreme Court constitutes a procedural default for which he has failed to demonstrate cause or actual prejudice. It is axiomatic that, for a federal court to surmount an adequate and independent state procedural bar to review, petitioner must demonstrate the cause of his procedural defaults, as well as actual prejudice resulting from them. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). However, it is not for this appellate court to decide whether Brown has shown cause for prejudice resulting from his counsel's deficient application to transfer, assuming Wainwright applies, or to ascertain whether, under state procedures, all matters were actually presented to the Missouri appellate courts.

We also reject both parties' invitation to reach the merits of Brown's habeas claims. The district court, as the trier of fact, must first rule on the "cause and prejudice" issue. Only then can it address the substance of Brown's underlying claims.5

For the reasons stated above, we reverse and remand to the district court for further proceedings to address the substantive issues in this case.

MAGILL, Circuit Judge, dissenting.

When the claims raised in a habeas petition are "patently frivolous," the administrative interests of both state and federal judicial systems in expedient resolution of the case outweigh any conceivable gain that may arise from remanding the case for a hearing on the exhaustion issue. Granberry v. Greer, --- U.S. ----, 107 S. Ct. 1671, 1675, 95 L. Ed. 2d 119 (1987). Here, there is absolutely overwhelming evidence that Brown's guilty plea was knowingly and voluntarily entered--he stated his guilt no less than eight times under oath, and wrote a seven-page statement to the same effect. Brown's second claim, that he should have been advised of the defense of diminished mental capacity, is equally well-refuted by the record. Brown's stalking of his victim for weeks, the premeditation and deliberation demonstrated by the facts surrounding the killing, and the absence of any positive findings in the psychiatric evaluation performed on Brown one week before the trial all refute any suggestion of Brown's diminished mental capacity. Assuming the truth of his allegation that his counsel failed to advise him of the availability of the diminished capacity defense, there simply are no facts showing that he was prejudiced thereby. I can conceive of no reason why we should burden the district court with a remand and hearing on issues, the resolution of which is clearly predetermined by the record and the principles in our case law.