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Partner v. Swarthout

United States District Court, C.D. California

May 14, 2014

JOHNNY ALBERT PARTNER, Petitioner,
v.
GARY SWARTHOUT, Warden, Respondent.

ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION AND DENYING A CERTIFICATE OF APPEALABILITY

DEAN D. PREGERSON, District Judge.

On April 8, 2014, Johnny Albert Partner ("Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 ("Petition"). (Docket No. 1.)

PRIOR PROCEEDINGS

In 1984, a Los Angeles County Superior Court jury convicted Petitioner of murder, robbery, and commission of murder during the commission of robbery, and the jury found true the enhancement allegations. (Petition at 2; Memorandum And Order Dismissing Petition for Writ of Habeas Corpus ("Summary Dismissal Order"), filed on April 30, 2007, Partner v. Hedgpeth, Warden, Case No. CV 07-2125 DDP (CT), at 1).[1] Petitioner was sentenced to life in prison without the possibility of parole and is currently in state custody. (Petition at 1-2; Summary Dismissal Order at 1).

On May 14, 1991, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (the "First Petition") in Case No. CV 91-2619 DWW (JR) (the "First Action"), challenging his 1984 conviction. (Summary Dismissal Order at 2). On August 13, 1991, judgment was entered dismissing the First Action without prejudice to Petitioner filing a new petition containing only grounds that had been exhausted in the state courts. (Id.).

Petitioner subsequently filed a second federal habeas petition (the "Second Petition") in Case No. CV 92-0097 HLH (JR) (the "Second Action"), again challenging his 1984 conviction. (Summary Dismissal Order at 2). The magistrate judge issued a report and recommendation addressing the merits of Petitioner's claims in the Second Petition and recommending that the Second Action be dismissed with prejudice. (Id.). The district Judge accepted the findings and recommendations of the magistrate judge and dismissed the Second Action on October 5, 1992. (Id.).

On March 14, 2003, Petitioner filed a third federal habeas petition (the "Third Petition") in Case No. CV 03-1822 DDP (CT) (the "Third Action"), again challenging his 1984 conviction. (Summary Dismissal Order at 2). On June 16, 2003, judgment was entered dismissing the Third Action without prejudice because the Third Petition was a second or successive petition. (Id. at 2-3).

On August 1, 2006, Petitioner filed a fourth federal habeas petition (the "Fourth Petition") in Case No. CV 06-4782 DDP (CT) (the "Fourth Action"), again challenging his 1984 conviction. (Summary Dismissal Order at 3). On August 28, 2006, judgment was entered dismissing the Fourth Action without prejudice because the Fourth Petition was a second or successive petition. (Id.).

On March 30, 2007, Petitioner filed a fifth federal habeas petition (the "Fifth Petition") in Case No. CV 07-2125 DDP (CT) (the "Fifth Action"), again challenging his 1984 conviction. (Summary Dismissal Order at 1). On April 30, 2007, judgment was entered dismissing the Fifth Action without prejudice because the Fifth Petition was a second or successive petition. (Id. at 1-5).

On April 8, 2014, Petitioner filed the instant Petition. In the Petition, Petitioner challenges the same 1984 judgment of conviction as his previous federal habeas petitions. (See Petition at 2).

DISCUSSION

The present Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA amended 28 U.S.C. § 2244(b) to read, in pertinent part, as follows:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior ...

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