Submitted November 13, 2014
Appeal from United States District Court for the District of North Dakota - Fargo.
Branden Clark, Petitioner - Appellant, Pro se, Bismarck, ND.
For Branden Clark, Petitioner - Appellant: Paul Henry Myerchin, Bormann & Myerchin, Bismarck, ND.
For Leann K. Bertsch, Respondent - Appellee: Ken R. Sorenson, Assistant Attorney General, Attorney General's Office, Bismarck, ND.
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 plainerror 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 court cannot reach an otherwise unpreserved and procedurally defaulted claim merely because a reviewing state court analyzed that claim for plain error. 766 F.2d at 1253. We therefore affirm the judgment of the district court dismissing Clark's habeas petition.
In 2007, while on state probation for 2005 theft offenses, Clark used a company's credit account at an equipment dealer to obtain a portable generator for himself. The company was unrelated to Clark but similarly named, and Clark was without authority to use the account. Based on these events, North Dakota revoked Clark's probation, and, in place of probation, he received a sentence of five years' imprisonment for the 2005 offenses.
The state also prosecuted Clark's 2007 use of the company's account as a new theft-of-property offense, eventually asserting the possibility of habitual offender status. Clark entered into a plea agreement that eliminated the possibility of being sentenced as a habitual offender. After Clark entered into the plea agreement, the state trial court sentenced him to four years' imprisonment, to be served consecutive to his other sentence.
Given the new charges, the revocation of probation, and the sentence imposed for the 2005 offenses, the trial court proceedings were somewhat complicated. At a hearing regarding the probation violation and revocation, Clark admitted the 2007 offense conduct. In addition, he signed a criminal judgment for the 2007 offense, stating that he entered a plea of guilty. At no time, however, did he actually enter a plea of guilty for the 2007 offense.
Clark appealed to the North Dakota Supreme Court arguing that he was sentenced without actually entering a guilty plea in the trial court. The North Dakota Supreme Court rejected his argument, finding that the totality of the circumstances evinced an intent to enter a plea of guilty. State v. Clark, 2010 ND 106, 783 N.W.2d 274, 276-77 (N.D. 2010). In an initial federal habeas proceeding, the federal district court granted habeas relief and vacated Clark's conviction and sentence for the 2007 offense because there had been no actual entry of a guilty plea. Clark v. Bertsch, No. 3:10-cv-110, 2011 WL 9977236 (D.N.D. Sept. 12, 2011) (" The fundamental question now before this ...