Clark v. Bertsch, No. 13-3379 (8th Cir. 2015)
Annotate this CaseIn 2007, while on probation for 2005 theft offenses, Clark illegally used a credit account. North Dakota revoked Clark's probation, and he received a sentence of five years for the 2005 offenses. Clark entered into a plea agreement on the new offense, to avoid being sentenced as a habitual offender. He was sentenced to four years' imprisonment, consecutive to his other sentence. Clark signed a judgment for the 2007 offense, stating that he entered a plea of guilty, but never actually entered a plea of guilty. Clark unsuccessfully appealed to the North Dakota Supreme Court arguing that he was sentenced without actually entering a plea in the trial court. A federal court granted habeas relief. Clark was then convicted on the 2007 charge. With an enhancement for being a habitual offender, he was sentenced to eight years (consecutive to his other sentence). The North Dakota Supreme Court rejected Clark's appeal. In federal habeas proceedings, the court dismissed claims that had been raised only in Clark's pro se state court brief as procedurally defaulted. The Eighth Circuit affirmed. 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.
Court Description: Prisoner case - Habeas. There is an intra-circuit split on the issue of whether a state appellate court's plain-error review of an unpreserved and otherwise procedurally defaulted claim "cures" the default and open the door for collateral review; following the earliest panel opinion, as the court is required to do, the panel hold Hayes v. Lockhart, 766 F.2d 1247 (8th Cir. 1985) governs in the circuit; Hayes holds a federal habeas cannot reach an otherwise unpreserved and procedurally defaulted claim merely because a reviewing state court analyzed that claim for plain error; the district court's judgment dismissing the habeas petition is affirmd.
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