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Lamar v. Adams

United States District Court, E.D. California

April 27, 2017

SHYRL IRENE LAMAR, Petitioner,
v.
DERRAL ADAMS, [1] Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner is a state prisoner proceeding pro se with this habeas corpus action filed under 28 U.S.C. § 2254, in which petitioner challenges her 1990 convictions and life sentence. This action proceeds on the original petition filed June 6, 2016. See ECF No. 1. Petitioner paid the filing fee.

         Pending before the court is respondent's motion to dismiss the petition as filed beyond the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). ECF No. 9. Petitioner filed an opposition, ECF No. 10, and respondent filed a reply, ECF No. 14.

         This matter is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned recommends that respondent's motion to dismiss be granted, and the petition be denied with prejudice.

         II. Chronology

         1. On July 12, 1990, in the Sacramento County Superior Court, petitioner was convicted by jury trial of two counts of first degree murder, robbery and burglary; three special circumstances were found to be true. Petitioner was sentenced to a prison term of life without the possibility of parole. See Lodged Document (Lodg. Doc.) 1.

         2. On February 16, 1994, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 2.

         3. On May 19, 1994, the California Supreme Court denied petitioner's petition for review filed March 21, 1994.[2] Lodg. Docs. 3, 4.

         4. Proceeding pro se, petitioner thereafter filed six state habeas petitions seeking post-conviction collateral relief. Petitioner filed her first state petition for writ of habeas corpus on November 3, 2013, in the Sacramento County Superior Court. Lodg. Doc. 5. The petition was denied by written order on November 21, 2013. The Superior Court found the petition untimely, citing In re Robbins, 18 Cal.4th 770, 780 (1998), and In re Clark, 5 Cal.4th 750, 765 (1993), and further found that no alleged error at trial constituted a fundamental miscarriage of justice warranting an exception to application of the timeliness requirements. Lodg. Doc. 6.

         5. On January 9, 2014, petitioner filed her second state petition for writ of habeas corpus, in the California Court of Appeal, Fifth Appellate District. Lodg. Doc. 7. The petition was denied on February 19, 2014, without prejudice to petitioner filing in the appropriate forum, the Third Appellate District. Lodg. Doc. 8.

         6. On March 10, 2014, petitioner filed her third state petition for writ of habeas corpus, in the California Supreme Court. Lodg. Doc. 9. The petition was summarily denied on May 14, 2014, with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998). Lodg. Doc. 10.

         7. On August 24, 2015, petitioner filed her fourth state petition for writ of habeas corpus, in the Sacramento County Superior Court. Lodg. Doc. 11. Petitioner asserted for the first time that a change in state law, as set forth in the California Supreme Court's decision in People v. Banks, 59 Cal.4th 1113 (Aug. 14, 2014) (abrogated on other grounds in People v. Scott, 61 Cal.4th 363, 391 n.3 (2015)), required a heightened assessment of petitioner's mens rea to support her murder convictions. The Superior Court denied the petition on November 16, 2015, in a written order holding that, even if Banks applied retroactively, it did not apply to the facts underlying petitioner's convictions. Lodg. Doc. 12.

         8. On December 7, 2015, petitioner filed her fifth state petition for writ of habeas corpus, in the California Court of Appeal, Third Appellate District, further pursuing her claims under Banks. Lodg. Doc. 13. The Court of ...


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