133379P.pdf   03/13/2015  Branden Clark  v.  Leann Bertsch
   U.S. Court of Appeals Case No:  13-3379
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Melloy, Author, with Murphy and Benton, Circuit Judges] 
   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.