Eighth Circuit Notes Intra-Circuit Split Re Appropriateness of Plain-Error Review in the Habeas Context

Per Chang v. Minnesota, --- F.3d ----, 2008 WL 850210 (8th Cir. Apr. 01, 2008):

There appears to be a decisional split within our Circuit regarding the appropriateness of plain-error review in the habeas context. In James v. Bowersox, Chief Judge Loken wrote that “we may not simply conduct our own plain error review de novo,” but must apply AEDPA (and, according to the Supreme Court in Fry, Brecht ). 187 F.3d 866, 869 (8th Cir.1999). This rule is in line with the Supreme Court's ruling in Frady. In that case, the Court held that “the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction.” United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (ruling in the context of a § 2255 proceeding); see also id., at 181 (Brennan, J., dissenting) (noting that the “Court's assumption that [plain-error review] is inapplicable to proceedings under § 2255 is built upon dictum in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), which suggests that the plain-error Rule is inapplicable in a habeas corpus action under 28 U.S.C. § 2254”). In contrast, courts such as the Richardson court have reviewed for plain error when the state court did so. 188 F.3d at 979. When there is an intra-circuit split, we are free to choose which line of cases to follow, and we choose to follow James and Frady. Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995).