concurring in part and dissenting in part.
While I agree with the majority that the only issue on appeal is whether the petitioners have adequately preserved the question of the sufficiency of the evidence to permit habeas corpus review, and while I agree with the result as to two of the three petitioners (Carpenter and Borders), I cannot agree with the way the majority reaches that result. The majority opinion would reject the procedural requirements of Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977) because in the present case “the state had no legitimate interest in requiring a renewal of the motion for a directed verdict.” Ante at 172. Since the purpose of the Kimbrough rule was satisfied here, that is, the trial court was in fact given the opportunity to rule on the sufficiency of all the evidence at the close of the trial through the vehicle of a motion for a new trial, the majority concludes that there can be no reason for the state to rely on its procedures to bar substantive review of the petitioners’ convictions. I do not feel comfortable, however, instructing the state court on when to apply and when not to apply its procedural rules. The Supreme Court of Kentucky is the proper body to make such a determination and not a federal court sitting in habeas review. The Supreme Court of Kentucky has refused to follow the avenue advocated by the majority in the present case.
Instead, I would hold that due process prohibits the Supreme Court of Kentucky from retroactively applying what is clearly a new procedural requirement first developed in Kimbrough some several months after the petitioners were tried and convicted, and thereby cut off substantive review of their convictions. To do otherwise would be a gross miscarriage of justice where *174every court which has examined the evidence has found it insufficient to permit the conviction of Carpenter and Borders to stand. Carpenter, Borders and Blair followed Kentucky’s procedural requirements as they existed on the date of their trial; no more can be expected of them. They thus adequately preserved for state appellate review the question of sufficiency of the evidence. We are not therefore foreclosed by Kentucky’s new procedural rule from reviewing the evidence in an independent determination of its legal sufficiency under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
I. KIMBROUGH AS NEW LAW
As the majority opinion correctly notes, the petitioners moved for a directed verdict of acquittal at the close of the government’s case-in-chief citing a lack of evidence to support a conviction. While they failed to renew this motion at the close of all the evidence, they did petition the trial court for a new trial after the verdict was rendered. Under Kentucky law prior to Kimbrough this was adequate to preserve for appellate review the question of the sufficiency of the evidence. Kimbrough was decided after the petitioners’ trial was completed. The state cannot, consistent with due process safeguards, retroactively apply new procedural rules to bar existing substantive deficiencies in the state’s proof.
Inexplicably, the Supreme Court of Kentucky, in its final decision in this case stated:
We rely substantially on two recent cases, Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977) and Rudolph v. Commonwealth, Ky., 564 S.W.2d 1, cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978). The procedural rule, as clarified in Kimbrough, is that in order for the issue of the sufficiency of the evidence to be preserved for appellate review, the party wishing to use the insufficiency as a basis for his appeal must have moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth’s case in chief.
Commonwealth v. Blair, 592 S.W.2d 132, 133, (Ky.1979), cert. denied, 449 U.S. 962, 101 S.Ct. 377, 66 L.Ed.2d 230 (1980) (emphasis supplied). Neither in Kimbrough nor in Blair did the court cite any case which supported its statement that the Kimbrough rule was a mere clarification of, and not a radical deviation from, prior practice. There certainly was no basis in either statute or court rule for deciding that the procedure had been well-settled prior to Kimbrough. The Kentucky courts have not cited and the appellant has not pointed to any case in which such a rule was either stated or applied. How the Kimbrough decision merely “clarified” existing law escapes detection. In fact, the case law from Kentucky, even that cited by the state in this Court, supports the interpretation that Kimbrough was new law, not a reiteration of existing practice.
In DeLong v. Commonwealth, 225 Ky. 461, 9 S.W.2d 136 (1928), defendants sought to reverse their convictions for burglary. At the close of the government’s case the defendants’ motion for peremptory instruction was overruled which, the court implies,! would have been erroneous had the defendants not presented proof of their own guilt. The defendants, therefore, could not “complain now because the court failed to direct their acquittal at the close of the commonwealth’s evidence.” Id. at 463, 9 S.W.2d 136. The court implicitly recognized that the issue of the sufficiency of the evidence was preserved once a motion is made for acquittal at the close of the government’s case. See also Lyon v. Prater, 351 S.W.2d 173 (Ky.1961) (right to rely on motion for directed verdict at close of plaintiff’s case based on insufficiency of evidence waived when defendant’s evidence cured omissions in plaintiff’s case, again implicitly recognizing that review of evidence would be appropriate had the gaps not been filled in); Harvey v. Commonwealth, 423 S.W.2d 535, 537 (Ky.1967) (same).
More recently, in Crain v. Commonwealth, 484 S.W.2d 839, 842 (Ky.1972), the *175appellant alleged, inter alia, that the trial court had erred in not directing a verdict of acquittal since the evidence was insufficient to justify a conviction. The court stated:
There was no motion for a directed verdict in Crain’s behalf at the close of the Commonwealth’s ease, nor at the close of all the evidence; consequently, this question was not properly preserved for appellate review.
(emphasis supplied, citation omitted). The clear implication of this language is that a motion at either of the above-mentioned times would have been sufficient to preserve the issue for appellate consideration. In Hatton v. Commonwealth, 409 S.W.2d 818, 819 (Ky.1966) a similar rule was announced when the court stated that it would not review the sufficiency of the evidence since the “[ajppellant did not move for a directed verdict or a peremptory instruction, nor ... for a new trial.” See also Minor v. Commonwealth, 478 S.W.2d 716, 717 (Ky.1971), cert. denied, 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517 (1972) (same).
There is some indication that the question of the sufficiency of the evidence could be preserved, pre-Kimbrough, by a motion for a new trial if that ground was relied upon in the motion. In Stone v. Commonwealth, 456 S.W.2d 43 (Ky.1970), the court reversed defendant’s conviction. The defendant had unsuccessfully moved for a new trial on the basis of discovery of new evidence. The court reversed because of the insufficiency of the evidence which had resulted in a manifest injustice. See also Hatton, supra.
The state principally argues that its criminal rules of procedure always required a motion at the close of all the evidence to preserve the sufficiency issue for review, R.Cr. 9.54, and thus the Kimbrough rule was merely a reiteration of that requirement. Even though, as we have seen, that proposition is far from clear, it has no relevance in the instant case. R.Cr. 9.54(2), a provision providing for peremptory instructions, is only invoked when “the evidence is insufficient to sustain the burden of proof on one or more, but less than all, of the issues presented by the case . ... ” Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1977) (emphasis in original). A directed verdict is the appropriate motion under Kentucky law when the movant seeks total acquittal, when “it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.” Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky.1978) (emphasis in original). The petitioners in the case sub judice sought total acquittal of the charges because the evidence was insufficient to sustain any conviction. Thus, and properly so, they moved for a directed verdict and not for a peremptory instruction.
II. SUFFICIENCY OF THE EVIDENCE:
Having concluded that pre-Kimbrough case law permitted the sufficiency issue to be preserved by a motion for directed verdict at the close of the government’s casein-chief, and recognizing that such a motion was made in the instant case, I am compelled to the conclusion that no procedural bar stands in the way of substantively evaluating the petitioners’ convictions. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The state cannot rely on a new procedural rule to bar review of a conviction under the guise of “clarification” when the procedures in effect at the time of conviction were complied with.1
*176After a thorough review of the record, I agree with all those courts which have substantively reviewed the evidence elicited at the petitioners’ trial and find insufficient evidence to sustain the convictions of Carpenter and Borders. Both the Kentucky Court of Appeals in its original decision and the Supreme Court of Kentucky in its original decision in this matter found no evidence linking Borders and Carpenter to the alleged crimes. Those courts were operating under guidelines established in Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974), guidelines subsequently overruled in Jackson v. Virginia, supra. Thus, the state courts have never evaluated the sufficiency of the evidence as to any of the appellees under the Jackson standard. However, given their finding under Vachon that “no” evidence supported the convictions of Carpenter and Borders, it follows a fortiori that these convictions were faulty under the stricter Jackson test.2
As to Blair, the Supreme Court of Kentucky felt there was “some” evidence sufficient to sustain a conviction. After a careful reading of the entire record, I conclude that a rational trier of fact could have found him guilty of the crimes charged. The evidence, indicating that Blair was leaving the scene of the second shooting in a car which matched the description of the car involved in that shooting, that one of the bullets had been previously chambered in his gun and that a gun had recently been fired from his automobile, along with his admissions to his girlfriend and to his superior and his testimony about his activities, which the jury could have found was false, was sufficient to permit the jury to find that he was involved in the shooting incidents at Club Cobra.3
Accordingly, for the reasons stated in this opinion, I would affirm the District Court’s grant of Carpenter’s and Borders’ habeas petitions and deny the petition of Blair.
. Engle v. Isaac, — U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) does not portend otherwise. Isaac dealt with the situation where a new substantive rule of law applied retroactively did not provide cause and prejudice for a failure to object contemporaneously. In Isaac the respondents did not lack at the time of trial “the tools to construct their constitutional claim.” Id. at - -, 102 S.Ct. at 1574. Here, we deal with a change in procedural rules, the proper timing of objections, a rule by its very nature arbitrary. No attorney, no matter how prescient, could have foreseen the procedural change in law that Kimbrough brought about. Petitioners, deprived of the means of preserving their rights, were denied due process. Cf. Riley v. Gray, 674 F.2d 522, 527 (6th Cir. 1982) (“federal habeas relief is available when . . . *176unanticipated and unforeseeable application of a procedural rule . . . prevents state court consideration of the merits of the claim.”)
. The cases need not be remanded to the state courts. The sufficiency of the evidence is a legal test, not a factual determination. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) does not therefore control. As a legal test, the Jackson standard can be applied perfectly well by a Court of Appeals for the first time on appeal.
. The District Court did not make an independent evaluation of the evidence with respect to Carpenter and Borders. It stated that “the state courts have, in all of their decisions concerning the evidence, consistently held that there was no relevant evidence to connect the petitioners with the crime...”. App. at 30. That was not the case in the Supreme Court of Kentucky with respect to Blair.