Lamar v. Zavaras

5 Citing cases

  1. Anaya v. CNMCF

    No. 21-cv-0650 JCH-SCY (D.N.M. Jul. 22, 2021)

    William Johnson) held that “because [Anaya's] ... appeal ... is still pending before the [New Mexico] courts, he has not exhausted all available state remedies.” Doc. 6 at 3 (quoting Lamar v. Zavaras, 430 Fed. App'x 718, 720 (10th Cir. 2011)). See also Carbajal v. Lynn, 640 Fed. App'x 811, 813 (10th Cir. 2016) (“no reasonable jurist could debate . that it would be premature to address [petitioner's § 2254] . challenge . while his direct appeal remains pending”); Glaser v. Raemisch, 668 Fed. App'x 341 (10th Cir. 2016) (same); Daegele v. Crouse, 429 F.2d 503 (10th Cir. 1970) (same).

  2. Lauderdale-El v. Ind. Parole Bd.

    35 F.4th 572 (7th Cir. 2022)   Cited 46 times
    Explaining that dismissals for lack of personal jurisdiction “are necessarily without prejudice” and “leav[e] open the possibility that the parties may pursue the dispute in another forum”

    34 (6th Cir. 1970) (reversing dismissal for failure to exhaust); Kolocotronis v. Holcomb , 925 F.2d 278 (8th Cir. 1991) (reversing dismissal without prejudice for failure to exhaust, and specifically rejecting challenge to finality for appellate jurisdiction); Williams v. Lockhart , 893 F.2d 191 (8th Cir. 1990) (reversing dismissal for failure to exhaust); Farmer v. McDaniel , 98 F.3d 1548, 1552–53 (9th Cir. 1996) (dismissal without prejudice for failure to exhaust was final judgment that state could appeal), abrogated on other grounds by Slack v. McDaniel , 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ; Jackson v. Borg , 992 F.2d 1219, 1993 WL 140594 (9th Cir. 1993) (vacating dismissal for failure to exhaust); Harmon v. Ryan , 959 F.2d 1457 (9th Cir. 1992) (vacating sua sponte dismissal for failure to exhaust); Gray v. Gray , 645 F. App'x 624 (10th Cir. 2016) (dismissal in part of some claims without prejudice for failure to exhaust was final judgment that could be appealed); Lamar v. Zavaras , 430 F. App'x 718 (10th Cir. 2011) (denying certificate of appealability where habeas petition was dismissed without prejudice for failure to exhaust); Doshier v. Oklahoma , 67 F. App'x 499 (10th Cir. 2003) (denying certificate of appealability where habeas petition was dismissed without prejudice for failure to exhaust); Claudio v. Secretary, Florida Department of Corrections , 578 F. App'x 797 (11th Cir. 2014) (vacating sua sponte dismissal without prejudice for failure to exhaust); Hafez v. Frazier , 440 F. App'x 751 (11th Cir. 2011) (vacating dismissal for failure to exhaust); Henry v. Department of Corrections , 197 F.3d 1361 (11th Cir. 1999) (vacating dismissal for failure to exhaust); Thomas v. Georgia State Board of Pardons & Paroles , 881 F.2d 1032 (11th Cir. 1989) (reversing in part dismissal for failure to exhaust where district court had erroneously converted § 1983 action to habeas petition); Davis v. Dugger , 829 F.2d 1513, 1521 (11th Cir. 1987) (in relevant part, reversing dismissal for failure to exhau

  3. Gorbey v. Warden of the Fed. Transfer Ctr.

    No. 13-6272 (10th Cir. Oct. 23, 2014)

    Thus, Mr. Gorbey's claim of ineffective assistance of counsel was not ripe for review, and he had not exhausted his state remedies. See Lamar v. Zavaras, 430 Fed. Appx. 718, 720 (10th Cir. 2011) (noting that appellant had not exhausted state remedies where appeal after re-sentencing was pending in state court) (citing Daegele v. Crouse, 429 F. 2d 503, 504-05 (10th Cir. 1970) (unpublished)). Even though the D. C. court did subsequently enter an amended judgment, that does not alter the fact that it had not apparently done so prior to the date that the district court in this case entered judgment.

  4. McGinnis v. Slayer

    1:21-cv-191 (D.N.D. Nov. 3, 2021)

    Here, there is nothing so exceptional about McGinnis' case that he should be permitted to bypass the state process. See Lamar v. Zavaras, 430 Fed. App'x 718, 2011 WL 2835860, at *2 (10th Cir. July 19, 2011) (holding that a § 2254 petition was properly dismissed without prejudice for failure to exhaust state remedies when petitioner's direct appeal was still pending in state court at the time he sought habeas relief); Slater v. Chatman, 147 Fed. App'x 959, 960 (11th Cir. 2005) (opining that the federal district court properly dismissed a § 2254 petition challenging the revocation of petitioner's state probation when the direct appeal of the revocation was still pending in the state's appellate court); cf. United States v. Bankole, 238 F.3d 415 (4th Cir. 2000) (“A § 2255 motion generally will not be heard where a direct appeal is pending, except in exceptional 5 circumstances.”). The orders he is challenging are presently on direct appeal.

  5. Anaya v. CNMCF

    No. 21-cv-0460 WJ-GJF (D.N.M. Jun. 30, 2021)

    However, “because [Anaya's] … appeal … is still pending before the [New Mexico] courts, he has not exhausted all available state remedies.” Lamar v. Zavaras, 430 Fed. App'x 718, 720 (10th Cir. 2011). See also Carbajal v. Lynn, 640 Fed. App'x 811, 813 (10th Cir. 2016) (“no reasonable jurist could debate … that it would be premature to address [petitioner's § 2254] … challenge … while his direct appeal remains pending”); Glaser v. Raemisch, 668 Fed. App'x 341 (10th Cir. 2016) (same); Daegele v. Crouse, 429 F.2d 503 (10th Cir. 1970) (same).