Lamey v. State of Mississippi

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations, Overruling Petitioner's 18 Objection and Dismissing Petition. Signed by District Judge Halil S. Ozerden on 10/17/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ALINA DALE LAMEY

PLAINTIFF

v.

CIVIL NO.: 1:15cv00349-HSO-FKB

UNKNOWN BANKS, Warden

DEFENDANT

ORDER OVERRULING PETITIONER’S OBJECTION [18], ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [17],
AND DISMISSING PETITION
BEFORE THE COURT is Petitioner Alina Dale Lamey’s (“Lamey”) Objection
[18] to the Report and Recommendation [17] of United States Magistrate Judge F.
Keith Ball. After thoroughly reviewing the Report and Recommendation and the
position advanced by Lamey, the Court finds that Lamey’s Objection should be
overruled and that the Magistrate Judge’s Report and Recommendation should be
adopted as the finding of the Court.
I. BACKGROUND
On October 21, 2015, Lamey filed a Petition [1] under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody. On August 23, 2017, the
Magistrate Judge issued his Report and Recommendation, recommending that
Lamey’s Petition be dismissed with prejudice. R. & R. [17] at 1. The Magistrate
Judge reviewed Lamey’s Petition and concluded that Lamey “never met the
exhaustion requirement for her claims” because “she failed to file an appeal to
Mississippi’s highest court” and “it is clear that there is no longer any avenue of
relief available to her in state court.” Id. at 2. The Magistrate Judge next

addressed Lamey’s argument that the cause for her default was that she received
inadequate assistance from the Inmate Legal Assistance Program. Id. The
Magistrate Judge found that Lamey’s general allegation did not establish cause for
her default and prejudice, and that Lamey made no showing that failure to consider
her claims would result in a fundamental miscarriage of justice. Id. at 3.
II. DISCUSSION
A.

Standard of Review
This Court conducts a de novo review of those portions of the report or

specified proposed findings or recommendations to which Lamey objects. Koetting
v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) (citing 28 U.S.C. § 636(b)(1)).
However, the district court need not “reiterate the findings and conclusions of the
magistrate judge.” Id. Nor must it consider “[f]rivolous, conclusive or general
objections.” Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). With
respect to those portions of the Report and Recommendation to which Lamey does
not object, the Court reviews those findings under a clearly erroneous or contrary to
law standard. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
B.

Analysis
Lamey does not object to the Magistrate Judge’s finding that she failed to

exhaust her remedies in state court. Furthermore, that finding is not clearly
erroneous. Lamey objects to the Magistrate Judge’s findings that: 1) she failed to
show cause for and prejudice from the default; and 2) failure to consider her claims
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would not result in a fundamental miscarriage of justice. Lamey alleges that
before the state trial court denied her motion for post-conviction relief (“PCR”), she
asked the Inmate Legal Assistance Program “many times what to do if I was
denied,” but she “was either ignored, forgotten, or sent a habeas corpus packet.”
Obj. [18] at 4.
“A prisoner may obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal law.” Martinez v. Ryan,
566 U.S. 1, 10 (2012). In order to demonstrate cause, the habeas petitioner must
“show that some objective factor external to the defense impeded counsel’s efforts to
raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493 (1991)
(citation and internal quotation marks omitted). Examples of these objective
factors include “interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal basis for a
claim was not reasonably available to counsel.” Id. at 494 (citation and internal
quotation marks omitted).
Lamey’s allegations do not show sufficient cause for why she did not appeal
the denial of her PCR motion to the state’s highest court. Moreover, Lamey has not
shown that failure to consider her claims would result in a “fundamental
miscarriage of justice” because she does not establish that she is “actually innocent”
of the offense for which she was convicted. Reed v. Stephens, 739 F.3d 753, 767
(5th Cir. 2014).
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The Court finds that the Magistrate Judge properly recommended that
Lamey’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 be
dismissed with prejudice. The Report and Recommendation will be adopted as the
opinion of this Court.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Petitioner Alina
Dale Lamey’s Objection [18] filed in this case is OVERRULED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Report and
Recommendation [17] of United States Magistrate Judge F. Keith Ball entered in
this case on August 23, 2017, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this Petition for
Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.

A separate

judgment will be entered in accordance with this Order, as required by Rule 58 of
the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 17th day of October, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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