U.S. Court of Appeals for the Eighth Circuit
Branden Clark v. Leann Bertsch
This writing
- Type
- Opinion
- Author
- Michael Joseph Melloy
- Filed
- March 13, 2015
- Case
- Branden Clark v. Leann Bertsch
- Case status
- Decided
Opening text
The first passage of the document, as extracted by the source provider.
United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3379 ___________________________ Branden Clark lllllllllllllllllllllPetitioner - Appellant v. Leann K. Bertsch lllllllllllllllllllllRespondent - Appellee ____________ Appeal from United States District Court for the District of North Dakota - Fargo ____________ Submitted: November 13, 2014 Filed: March 13, 2015 ____________ Before MURPHY, MELLOY, and BENTON, Circuit Judges. ____________ MELLOY, Circuit Judge. Branden Clark appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The specific issue before our court is whether a state appellate court's plain- error review of an unpreserved and otherwise procedurally defaulted claim "cures" the default and opens the door for federal collateral review. Panel opinions in our circuit are divided on this issue, and we take this opportunity to retire this intra-circuit split. Following the earliest panel opinion, as required by the rule announced in Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc), we hold that Hayes v. Lockhart, 766 F.2d 1247, 1253 (8th Cir. 1985), governs in our circuit. Hayes holds a federal habeas co…
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