E.D. Mo. Notes Decisional Split within Eighth Circuit

Per Jackson v. Steele, Slip Copy, 2009 WL 350633 (E.D. Mo. Feb. 10, 2009):

Authority within the Eighth Circuit is mixed in regard to whether a state prisoner can raise a claim pursuant to a § 2254 petition which has only been reviewed by the state court for plain error. The Eighth Circuit acknowledged in Hornbuckle v. Groose that “ ‘[t]here 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.’ “ 106 F.3d 253, 257 (8th Cir.1997) (quoting Mack v. Caspari, 92 F.3d 637, 641 n. 6 (8th Cir.1996)). In Hornbuckle, 106 F.3d at 257, the Eighth Circuit chose to follow cases holding that where Missouri courts review procedurally defaulted claims of a habeas petitioner for plain error, the federal habeas court may likewise review for plain error. In Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir.2000), the Eighth Circuit addressed the merits of a habeas petitioner's claim where the state court had reviewed the claim for plain error. However, in Evans v.. Luebbers, 371 F.3d 438, 443 (8th Cir.2004), the Eighth Circuit stated that a habeas claim was procedurally defaulted “notwithstanding the fact that the Missouri Court of Appeals reviewed the claim for plain error.”