United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING PETITIONER'S OBJECTION ,
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, AND DISMISSING PETITION
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Petitioner Alina Dale Lamey's
(“Lamey”) Objection  to the Report and
Recommendation  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.
October 21, 2015, Lamey filed a Petition  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.  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.
Standard of Review
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).
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 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.  at 4.
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
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).
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.
THEREFORE, ORDERED AND ADJUDGED that, Petitioner Alina Dale
Lamey's Objection ...