E.D. Missouri Notes Intra-Circuit Split Re Procedure for Review of Claims for Plain Error

Per Thomas v. Dwyer , Slip Copy, 2007 WL 2137807 (E.D. Mo. Jul 23 , 2007) (NO. 4:04CV46 DJS):

As an initial matter, the undersigned notes that the Missouri Court of Appeals reviewed the instant claim for plain error inasmuch as petitioner failed to preserve the specific claim for appellate review. In Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.1997), the Eighth Circuit recognized that a decisional split within the circuit allows the Court to choose whether to review for plain error a claim reviewed by the state court only for plain error or whether to determine such limited state court review not to cure an otherwise procedurally defaulted claim. In Burns v. Gammon, 173 F.3d 1089 (8th Cir.1999), the Eighth Circuit suggested that, in such circumstances, the federal habeas court undertake the same review as the state court in determining a petitioner's claim:

We think we should do what the state court did: give the point plain-error review. In this way, we are not encroaching at all on the authority of the state courts; we are fully respecting their procedural rule; and we are giving the argument the same degree of attention that the state courts gave it.