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Johnson v. Duffy

United States District Court, E.D. California

February 27, 2014

ARTHUR EUGENE JOHNSON, Petitioner,
v.
BRIAN DUFFY, Warden, Respondent.

ORDER and FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner proceeding with retained counsel in this fee-paid habeas corpus action filed pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for attempted murder and possession of a firearm by a felon. Pending is respondent's motion to dismiss the petition on the ground that it is successive, within the meaning of 28 U.S.C. § 2244(b), and has been filed in this court without authorization from the United States Court of Appeals for the Ninth Circuit, as required by 28 U.S.C. § 2244(b)(3)(A).

For the reasons that follow, the undersigned recommends that respondent's motion be granted.

II. Preliminary Matter

By order filed January 31, 2013, this court directed petitioner's counsel, within fourteen days, to "show cause for failing to timely file and serve an opposition, or statement of no opposition, to the pending motion to dismiss, AND, if opposing the motion, [to] file and serve such opposition." (ECF No. 15 at 2.) On February 7, 2014, petitioner's counsel filed a substantive statement in opposition to the motion, without addressing his reasons for previously failing to file such opposition.

The court will discharge the order to show cause, but counsel is informed that his failure to respond to the court's inquiry is a violation of court order. Counsel is reminded that "[f]ailure of counsel... to comply... with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Local Rule 110. Although the court will refrain from imposing sanctions at this time, counsel is on notice that his adherence to the Local Rules and Federal Rules of Civil Procedure is mandatory.

III. Chronology

The relevant chronology in this action is as follows:

A. Trial Court Proceedings and Direct Appeal

1. On January 26, 2005, a jury found petitioner guilty of attempted murder and possession of a firearm by a felon. (Respondent's Lodged Document (Resp. Ldgd. Doc.) No. 1; see also Petition (ECF No. at 1 at 4).) The jury found true the allegations that petitioner personally used a firearm and committed the offenses for the benefit of a street gang; and that a principal in the attempted murder personally and intentionally discharged a firearm causing great bodily injury for the benefit of a street gang.

2. On June 9, 2005, petitioner filed a motion for new trial.

3. On June 10, 2005, the trial court denied petitioner's motion for new trial, and sentenced petitioner to a term of 59 years to life.

4. On June 23, 2005, petitioner filed an appeal to the California Court of Appeal, Third Appellate District (Case No. C050061), ...


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