                   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 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 court1 dismissing Clark's habeas petition.

I.    Background

      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

      1
       The Honorable Ralph R. Erickson, Chief Judge for the United States District
Court for the District of North Dakota, adopting the report and recommendation of
the Honorable Karen K. Klein, Chief Magistrate Judge for the District of North
Dakota.

                                         -2-
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, 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 Court is whether one can be sentenced for a crime to which no plea of
guilty has been entered and no trial resulting in a conviction has been held. The
answer is no.").

       The state and Clark then resumed negotiations which proved unfruitful. Clark
subsequently went to jury trial and was convicted on the 2007 theft-of-property
charge. He was sentenced with an enhancement for being a habitual offender for a
term of imprisonment of eight years (again, to be served consecutive to his other
sentence). This new post-jury-trial sentence was twice what he had received under
the earlier plea deal.

       On appeal from his jury trial, conviction, and sentence in state court, counsel
filed a brief on Clark's behalf raising several issues. Clark also filed a pro se brief
raising several additional issues including a claim of prosecutorial vindictiveness and
a claim that the trial judge was biased. The North Dakota Supreme Court identified
the issues Clark raised in his pro se brief as issues that had not been raised at trial.



                                          -3-
The North Dakota Supreme Court rejected Clark's pro se claims as not rising to the
level of "obvious error," stating:

      These issues were not raised before the district court. This Court will
      not address issues that are raised for the first time on appeal. However,
      [a]n obvious error or defect that affects substantial rights may be
      considered even though it was not brought to the court's attention. We
      exercise the power to notice obvious error cautiously and only in
      exceptional circumstances where the defendant has suffered serious
      injustice. To establish obvious error, the defendant must show plain
      error existed affecting his substantial rights. The error must be a clear
      deviation from an applicable legal rule under current law to constitute
      an obvious error. Here, none of the issues rise to the level of obvious
      error.

State v. Clark, 818 N.W.2d 739, 746–47 (N.D. 2012) (internal citations and quotation
marks omitted).

      Clark then filed the present federal habeas petition in which he raised ten
claims, including several claims he had raised in his pro se brief to the North Dakota
Supreme Court. The district court dismissed as procedurally defaulted the claims that
had been raised only in Clark's pro se state court brief. The district court, however
granted a certificate of appealability regarding the question of whether the North
Dakota Supreme Court's plain-error review could excuse Clark's procedural default.
Clark appeals.2




      2
        Clark subsequently moved to expand the certificate of appealability to reach
other issues, but an earlier panel of our court denied the motion.

                                         -4-
II.    Discussion

       The district court's dismissal of Clark's habeas claims as procedurally defaulted
rested on a purely legal determination. As such, we review the judgment below de
novo. See, e.g., Mack v. Caspari, 92 F.3d 637, 641 (8th Cir. 1996).

       At trial, Clark neither raised nor preserved the claims later raised in his pro se
brief to the North Dakota Supreme Court. In reviewing only for "obvious error," the
North Dakota Supreme Court did not elaborate upon the merits of the claims. Clark,
818 N.W.2d at 746–47. The court, however, referred to the obvious-error standard
as requiring Clark to show an error that was plain, affected substantial rights, and
resulted in serious injustice. Id. at 747. The court also described obvious-error
review as discretionary. Id. (noting that unpreserved error "may be considered" but
that the "power to notice obvious error" must be exercised "cautiously and only in
exceptional circumstances") (emphasis added). We understand this standard to be
akin to our familiar standard for plain-error review.

       The parties correctly identify a split of panel authority in our circuit regarding
the effect of a state appellate court's plain-error review of an otherwise procedurally
defaulted claim. See, e.g., Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2009)
("Unfortunately, there exists an oft-noted, yet surprisingly persistent, split of authority
in our circuit about whether plain error review 'cures' the procedural default."); Mack,
92 F.3d at 641 n.6 ("There appears to be a decisional split within our Circuit on
whether plain-error review by a state appellate court waives a procedural default by
a habeas petitioner, allowing collateral review by this Court."). Compare Toney v.
Gammon, 79 F.3d 693, 699 (8th Cir. 1996) (holding state’s plain-error review does
not cure procedural default, and federal court may review only if cause and prejudice
demonstrated), and Hayes v. Lockhart, 766 F.2d 1247, 1253 (8th Cir. 1985) (same);
with Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000) (holding state’s plain-
error review of procedurally-barred claim allows later consideration in federal court),

                                           -5-
and Bannister v. Armontrout, 4 F.3d 1434, 1445 n.16 (8th Cir. 1993) (same, but
noting "[w]e do not suggest that in every case plain-error review is sufficient to
permit federal habeas review"), and Williams v. Armontrout, 877 F.2d 1376, 1379
(8th Cir. 1989) (same).

       Prior to our court's en banc decision in Mader v. United States, 654 F.3d 794
(8th Cir. 2011), panels in the Eighth Circuit were permitted to choose which line of
authority to follow in the event of an intra-circuit panel split. See, e.g., Kilmartin v.
Dormire, 161 F.3d 1125 (8th Cir. 1998) (noting the "decisional split" on this
procedural bar issue and stating, "Given the divergence within this circuit, we are free
to choose which line of cases to follow. We choose to review for plain error, i.e., to
determine whether manifest injustice resulted from the faulty instruction.") (internal
citation omitted). Our en banc court, however, clearly put this rule to rest; the court
directed that future panels are to determine and follow the earliest precedent in the
event of an intra-circuit panel split. Mader, 654 F.3d at 800 ("We definitively rule
today, in accordance with the almost universal practice in other federal circuits, that
when faced with conflicting panel opinions, the earliest opinion must be followed as
it should have controlled the subsequent panels that created the conflict.") (internal
citation and quotation marks omitted).

       Here the earliest and controlling panel opinion of Hayes, 766 F.2d at 1253,
provides the rule we must apply. In Hayes, a habeas petitioner sought federal review
of an unpreserved challenge to a jury instruction. Id. at 1252–53. The state supreme
court had analyzed the claim applying a plain-error standard, and the petitioner
sought federal collateral review under a plain-error standard. The state argued that
a federal court on collateral review could reach a procedurally defaulted claim only
if the prisoner could demonstrate cause for, and actual prejudice resulting from, the
default. Our court held the claim procedurally barred and unreviewable, stating:




                                          -6-
       The Supreme Court has refused to replace or supplement the "cause-
       and-prejudice" standard with a plain-error inquiry. The burden of
       justifying federal habeas relief for state prisoners is greater than the
       "plain error" showing required on direct appeal. Thus, the district court
       properly concluded that Hayes was not entitled to an independent
       determination of the improper instruction issue.

Id. at 1253 (quoting Engle v. Isaac, 456 U.S. 107, 134–35 (1982)).3

       Because the state court's discretionary plain-error review of Clark's
unpreserved claims cannot excuse his procedural default, we affirm the judgment of
the district court.
                      ______________________________




      3
         It appears Williams, 877 F.2d at 1379, served as the genesis of our court's
competing line of panel authority. There, a panel of our court held a state court's
discretionary plain-error review of an unpreserved claim removed any procedural bar
to federal collateral review. In reaching this result, the Williams panel relied upon
a Supreme Court footnote from Engle. Id. The Supreme Court's footnote stated, "If
[the state] had exercised its discretion to consider respondents' claim, then their initial
default would no longer block federal review." Engle, 456 U.S. at 135 n.44. This
footnote from Engle, however, was dicta. The Court in Engle had simply reaffirmed
that, before a federal court may conduct collateral review of a state prisoner's
procedurally defaulted claim, the prisoner must show cause and prejudice to excuse
the default. Id. at 129 ("We reaffirm, therefore, that any prisoner bringing a
constitutional claim to the federal courthouse after state procedural default must
demonstrate cause and actual prejudice before obtaining relief."). In any event, the
rationale behind the competing lines of authority is of little consequence for our task
today. Mader defines the scope of our authority as a panel, and Mader requires that
our panel follow the earliest precedent in the intra-circuit split.

                                           -7-
