WEICK, Senior Circuit Judge.
Respondent, Charles M. Leibson, appeals from the judgments by United States District Judge Allen (in the case of Carpenter and Borders) and United States District Judge Ballantine (in the case of Blair), both of the Western District of Kentucky, granting Petitioners’ separate applications for writs of habeas corpus under 28 U.S.C. section 2254. For these reasons hereinafter stated, we affirm.
I
Petitioners-Appellees were all members of the Louisville Police Department. In 1976 they were convicted by a jury in the Jefferson Circuit Court at Louisville, Kentucky, of two counts of wanton endangerment in the first degree and two counts of criminal mischief in the third degree, and sentenced to one year in the penitentiary. The convictions were for incidents which occurred on the night of March 30-31, 1976, in which shotgun and rifle shots were fired into various stores, bars, and automobiles.
Respondent Leibson was the trial judge in the case. He is the respondent because [170]*170Petitioners Carpenter and Borders have not yet served their sentences, being on bond pending their state court appeals and these habeas proceedings; Petitioner Blair has served his sentence but is on probation under Respondent’s supervision.
During their trial, their counsel moved for a directed verdict of acquittal on the grounds of insufficiency of the evidence at the close of the Commonwealth’s case, but did not formally renew the motion at the close of all the evidence.
In an opinion dated February 19, 1978, the Court of Appeals of Kentucky reversed the convictions and ordered a new trial because of insufficient evidence to support the convictions. The Commonwealth petitioned for rehearing and on June 30, 1978, the Court of Appeals withdrew its original opinion and reissued it. This time the court reversed the convictions outright because of a total lack of evidence.
Chief Judge Boyce Martin, now of this court, filed a concurring opinion. He noted that the Commonwealth had raised for the first time on the petition for rehearing the question of the timing of the defendants’ motion for directed verdict. In two cases decided after the defendants’ trial—Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977) and Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977)—the Kentucky Supreme Court had laid down a new rule that the question of sufficiency of the evidence would not be preserved for appellate review unless the defendant had moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth’s case in chief. Chief Judge Martin stated:
Furthermore, Kimbrough represents a clear departure from prior law in this Commonwealth. Previously, a question of sufficiency of evidence could have been preserved either by a motion for directed verdict at the close of the Commonwealth’s case, or at the close of all the evidence, or even in a motion for a new trial. See Crain v. Commonwealth, Ky., 484 S.W.2d 839, 842 (1972); Civil Rule 61.02, made applicable to criminal cases pursuant to Criminal Rule 13.04; Stone v. Commonwealth, Ky., 456 S.W.2d 43, 44 (1970).
The Commonwealth argued that since the defendants had not moved for a directed verdict at the close of all the evidence, they were foreclosed from raising the issue of sufficiency of the evidence on appeal.
Chief Judge Martin stated that those cases were not meant to be applied retroactively because they represented a clear departure from prior Kentucky law, in which a motion at the close of the state’s evidence was sufficient. He held that “it would be fundamentally unfair to apply this newly created preservation of error rule to the facts and circumstances of this case” because the appellants could not have had notice of the change. Since the procedural change would significantly affect the appellants’ substantial rights, applying the change retroactively would make it operate in the same manner as an ex post facto law, and would thus violate due process.
The Commonwealth appealed to the Supreme Court of Kentucky. On June 12, 1979, the Supreme Court of Kentucky issued an opinion affirming the Court of Appeals as to Petitioners Carpenter and Borders, but reversing as to Petitioner Blair. The court stated specifically that the evidence against Carpenter and Borders was insufficient. As to Blair, the court stated there was some relevant evidence but did not rule on its sufficiency.
The Kentucky Supreme Court granted the Commonwealth’s petition for rehearing and on November 20, 1979, it vacated its first opinion and issued a new one. This time it reversed the Court of Appeals as to all three petitioners, thereby reinstating the convictions of all three. It did so solely on the basis that, under the new rule of Kimbrough v. Commonwealth, supra, the appellants’ motions for directed verdict were not timely. Commonwealth v. Blair, 592 S.W.2d 132 (Ky.1979).
The posture of the sufficiency of the evidence question in the Kentucky Supreme Court therefore was that, in the first opinion which was later vacated, the court [171]*171found insufficient evidence to support the convictions of Carpenter and Borders and some relevant evidence as to Blair; and in the second, final opinion it refused to consider the question of sufficiency of the evidence as to any of them because no formal motions for directed verdict were made at the close of all of the evidence.
In its opinion, the Supreme Court of Kentucky 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. The rationale behind this rule being that: “If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury.” Kimbrough, 550 S.W.2d at 529. Furthermore, “[w]e have held consistently that insufficiency of the evidence to support a verdict must be timely raised in the trial court — ordinarily by a motion for a directed verdict ... in order for the question to be reviewable on appeal.” Rudolph, 564 S.W.2d at 4. See e.g., Long v. Commonwealth, 559 S.W.2d 482 (1977) and Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1977).
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WEICK, Senior Circuit Judge.
Respondent, Charles M. Leibson, appeals from the judgments by United States District Judge Allen (in the case of Carpenter and Borders) and United States District Judge Ballantine (in the case of Blair), both of the Western District of Kentucky, granting Petitioners’ separate applications for writs of habeas corpus under 28 U.S.C. section 2254. For these reasons hereinafter stated, we affirm.
I
Petitioners-Appellees were all members of the Louisville Police Department. In 1976 they were convicted by a jury in the Jefferson Circuit Court at Louisville, Kentucky, of two counts of wanton endangerment in the first degree and two counts of criminal mischief in the third degree, and sentenced to one year in the penitentiary. The convictions were for incidents which occurred on the night of March 30-31, 1976, in which shotgun and rifle shots were fired into various stores, bars, and automobiles.
Respondent Leibson was the trial judge in the case. He is the respondent because [170]*170Petitioners Carpenter and Borders have not yet served their sentences, being on bond pending their state court appeals and these habeas proceedings; Petitioner Blair has served his sentence but is on probation under Respondent’s supervision.
During their trial, their counsel moved for a directed verdict of acquittal on the grounds of insufficiency of the evidence at the close of the Commonwealth’s case, but did not formally renew the motion at the close of all the evidence.
In an opinion dated February 19, 1978, the Court of Appeals of Kentucky reversed the convictions and ordered a new trial because of insufficient evidence to support the convictions. The Commonwealth petitioned for rehearing and on June 30, 1978, the Court of Appeals withdrew its original opinion and reissued it. This time the court reversed the convictions outright because of a total lack of evidence.
Chief Judge Boyce Martin, now of this court, filed a concurring opinion. He noted that the Commonwealth had raised for the first time on the petition for rehearing the question of the timing of the defendants’ motion for directed verdict. In two cases decided after the defendants’ trial—Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977) and Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977)—the Kentucky Supreme Court had laid down a new rule that the question of sufficiency of the evidence would not be preserved for appellate review unless the defendant had moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth’s case in chief. Chief Judge Martin stated:
Furthermore, Kimbrough represents a clear departure from prior law in this Commonwealth. Previously, a question of sufficiency of evidence could have been preserved either by a motion for directed verdict at the close of the Commonwealth’s case, or at the close of all the evidence, or even in a motion for a new trial. See Crain v. Commonwealth, Ky., 484 S.W.2d 839, 842 (1972); Civil Rule 61.02, made applicable to criminal cases pursuant to Criminal Rule 13.04; Stone v. Commonwealth, Ky., 456 S.W.2d 43, 44 (1970).
The Commonwealth argued that since the defendants had not moved for a directed verdict at the close of all the evidence, they were foreclosed from raising the issue of sufficiency of the evidence on appeal.
Chief Judge Martin stated that those cases were not meant to be applied retroactively because they represented a clear departure from prior Kentucky law, in which a motion at the close of the state’s evidence was sufficient. He held that “it would be fundamentally unfair to apply this newly created preservation of error rule to the facts and circumstances of this case” because the appellants could not have had notice of the change. Since the procedural change would significantly affect the appellants’ substantial rights, applying the change retroactively would make it operate in the same manner as an ex post facto law, and would thus violate due process.
The Commonwealth appealed to the Supreme Court of Kentucky. On June 12, 1979, the Supreme Court of Kentucky issued an opinion affirming the Court of Appeals as to Petitioners Carpenter and Borders, but reversing as to Petitioner Blair. The court stated specifically that the evidence against Carpenter and Borders was insufficient. As to Blair, the court stated there was some relevant evidence but did not rule on its sufficiency.
The Kentucky Supreme Court granted the Commonwealth’s petition for rehearing and on November 20, 1979, it vacated its first opinion and issued a new one. This time it reversed the Court of Appeals as to all three petitioners, thereby reinstating the convictions of all three. It did so solely on the basis that, under the new rule of Kimbrough v. Commonwealth, supra, the appellants’ motions for directed verdict were not timely. Commonwealth v. Blair, 592 S.W.2d 132 (Ky.1979).
The posture of the sufficiency of the evidence question in the Kentucky Supreme Court therefore was that, in the first opinion which was later vacated, the court [171]*171found insufficient evidence to support the convictions of Carpenter and Borders and some relevant evidence as to Blair; and in the second, final opinion it refused to consider the question of sufficiency of the evidence as to any of them because no formal motions for directed verdict were made at the close of all of the evidence.
In its opinion, the Supreme Court of Kentucky 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. The rationale behind this rule being that: “If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury.” Kimbrough, 550 S.W.2d at 529. Furthermore, “[w]e have held consistently that insufficiency of the evidence to support a verdict must be timely raised in the trial court — ordinarily by a motion for a directed verdict ... in order for the question to be reviewable on appeal.” Rudolph, 564 S.W.2d at 4. See e.g., Long v. Commonwealth, 559 S.W.2d 482 (1977) and Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1977).
Since respondents failed to move for a directed verdict at the close of all the evidence, the Kimbrough rule must be applied as we perceive no reason to retract from this position. We must remain firm in our adherence to specified procedure because “an appellate hearing is conditioned upon compliance with essential rules, without which this court could not effectively conduct its business.
It is our duty to enforce those rules as a part of the judicial process .. .. ” United Mine Workers of America v. Morris, Ky., 307 S.W.2d 763, 766 (Ky.1957). Judicial consistency must be observed in order to maintain a responsible and efficient court system.
The opinion of the Court of Appeals is reversed, and the judgments of conviction for all three respondents are affirmed. [Id. 592 S.W.2d at 133; emphasis added.]
Certiorari was subsequently denied by the Supreme Court of the United States. Blair v. Kentucky, 449 U.S. 962, 101 S.Ct. 377, 66 L.Ed.2d 230 (1980). Justices Marshall and Brennan filed a dissent to the denial of certiorari, in which they analyzed the matter in much the same way that Chief Judge Martin had in the state court of appeals.
II
Petitioners Carpenter and Borders filed a petition for a writ of habeas corpus in the District Court for the Western District of Kentucky on December 8, 1980. On February 10, 1981, Chief Judge Allen granted the writ. He held that the retroactive application of the new procedural rule by the Kentucky Supreme Court was a denial of due process and, since both the Kentucky Court of Appeals and the Kentucky Supreme Court had found the evidence against them to be insufficient, the convictions should be set aside and the indictments dismissed.
Petitioner Blair filed his petition in the same District Court on March 9, 1981. On June 10, 1981, Judge Ballantine granted it. He found that Petitioner could not fairly be charged with anticipating the new rule of law, and that therefore consideration of the petition would not be barred by his untimely motion for directed verdict in the state court. He then went on to grant the petition on the basis that there was insufficient evidence against him.
Respondents’ appeals from both judgments have been consolidated for oral argument.
[172]*172III
The only issue in these appeals is whether the defendants in the trial court adequately raised the issue of the sufficiency of the evidence, so as to require the Supreme Court of Kentucky to rule on the issue which it avoided doing.
During the hearing on the motions for a new trial filed in the Jefferson Circuit Court, Mr. Fleming, counsel for Borders, said the following:
Thank you, Your Honor. The next question that I’d like to address myself, Your Honor, was the failure of the Court to grant a directed verdict at the conclusion of the case for the prosecution, and conclusion of the case for the defense, insofar as the evidence pertained to the defendant, Borders.” [App. 217-218; emphasis added.]
Mr. Fleming then made a lengthy argument as to why a verdict should have been directed also calling attention to his brief.
For those reasons, Your Honor, I submit to you that the motion for directed verdict should have been granted at the conclusion of the evidence for the Commonwealth. There was nothing developed in the course of the presentation of the evidence for the defense that in any way bolstered that absence of evidence in direct proof. [App. 211.]
District Judge Allen, in his Memorandum ' Opinion, expressly found “there is no contention made in the case at bar that evidence introduced in behalf of petitioners added any substance to the evidence produced by the Commonwealth.” (App. 32-33). District Judge Bailan tine made a similar statement in his opinion. (App. 191). Since it was not even contended that the evidence offered by the defendants after the denial of their motions for a directed verdict supported the Commonwealth’s case, the state had no legitimate interest in requiring a renewal of the motion for a directed verdict.
Substantially the same arguments were made by counsel for the remaining defendants Carpenter and Blair. Then the prosecution presented its review of the evidence. The trial judge responded to the arguments as follows.
And so I think that on the basis of what could be inferred from the vast testimony, and the inferences from all the various witnesses, that there was sufficient evidence to submit to the jury. I thought so at the time and I think so now.... I feel that there was certainly sufficient evidence to submit to the jury or I would not have done so, and I am still of the same opinion. Gentlemen, I’m going to overrule the motion for a new trial. [App. 226]
None of this was called to the attention of the Supreme Court of Kentucky. Thus, it appears that the trial court did actually consider and rule on the sufficiency of the evidence not only when the motion for a directed verdict was made at the close of the Commonwealth’s evidence, but also at the close of all the evidence before the case was submitted to the jury, even though no formal motion for a directed verdict was renewed. The trial court did not mention any failure to renew the motion. The court said it considered all the testimony and witnesses before it submitted the case to the jury. As the trial court indicated that it considered all the evidence, including that presented by the defense, certainly the sufficiency of the evidence was preserved for appeal; the trial court had opportunity to consider it all and it did so. There can be no question but that the trial court had the right to control the proceedings when ruling on the motion for a new trial. Thus, the ruling of the Supreme Court of Kentucky that the trial court should be afforded the opportunity to rule on the sufficiency of the evidence was actually complied with fully in the present case. There is no rational basis now for the Supreme Court of Kentucky to technically and mechanically apply any procedural rule, new or not, when in truth and in fact it was not applicable, as the uncontroverted record shows that the trial court actually considered and ruled on the sufficiency of the evidence. We should look to substance rather than to mere form. It is also not at all clear to us that the [173]*173Supreme Court of Kentucky in Kimbrough actually changed the preexisting rule, the court stating that it was merely clarifying the rule.
There is really no need to determine whether the Supreme Court of Kentucky properly applied a new rule or not in Kimbrough, as the Supreme Court nevertheless should have ruled on the sufficiency of the evidence under the facts and circumstances existing in the present case.
In sum, the federal courts should accept the detailed findings of fact contained in the opinion of the Court of Appeals of Kentucky, which reversed the convictions of all of the defendants on the ground that the Commonwealth had failed to prove beyond a reasonable doubt that the defendants had committed the offense with which they were charged. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Supreme Court of Kentucky affirmed the Court of Appeals as to the defendants Carpenter and Borders holding that the evidence against them was insufficient. As to Blair, the Supreme Court of Kentucky reversed the Court of Appeals stating there was some relevant evidence, without holding that such relevant evidence was sufficient. It will be recalled that there was no evidence that Blair was even at the scene at the time of the shooting let alone participated in it. Even mere presence is insufficient to support a conviction. On reconsideration, the Supreme Court of Kentucky then withdrew its decisions in all of the cases, holding only that the sufficiency of evidence would not be considered because no timely motions for a directed verdict had been made at the close of all the evidence. Thus the Supreme Court of Kentucky declined to rule on the all important constitutional issue of whether the convictions were supported by evidence of guilt beyond a reasonable doubt.
The district courts relied in part on this Court’s decision in Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980), which has since been reversed by the United States Supreme Court, Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In our opinion, the decision in Isaac is not relevant to the issues in the present case as the facts and circumstances in the cases are different.
The judgment of the District Court in each case is affirmed.