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Lucero v. Puentes

United States District Court, E.D. California

November 7, 2019

RUDOLPH LUCERO, Petitioner,
v.
G. PUENTES, Respondent.

          FINDINGS AND RECOMMENDATION THAT COURT DISMISS PETITION FOR WRIT OF HABEAS CORPUS AT SCREENING ECF NO. 1

         Petitioner Rudolph Lucero, a federal prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. On November 23, 1998, petitioner was convicted of drug possession with intent to distribute and use of a firearm in relation to drug trafficking. See ECF No. 1 at 13. Petitioner was sentenced to 365 months on the drug charge and 60 months on the firearm charge. The sentencing judge determined that the terms of incarceration would be served consecutively, for a total of 425 months-over 35 years. Petitioner has served more than 21 years of his sentence. See ECF No. 1 at 19. In his habeas petition, he argues (1) that the evidence at trial was insufficient for his conviction on the use of a firearm count, and (2) that his mandatory minimum sentence was wrongfully increased when he was made to serve the term of incarceration associated with his drug conviction before that associated with his firearm conviction. See ECF No. 1 at 2.

         Petitioner's first claim fails because he did not file the claim under the correct statute or in a timely manner. His second claim is meritless. I recommend that the petition be dismissed at screening.

         Discussion

         The matter is before the court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to a habeas proceeding must examine the habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Here, it plainly appears that petitioner is not entitled to relief.

         First, petitioner argues that he should not have been convicted of firearm use because the evidence at trial was insufficient. Specifically, he argues that there was “obvious court error” at trial because the gun involved in his case was not “test fired, tied to [p]etitioner, nor declared anything but the antique piece of art that it was.” ECF No. 7. This is a challenge to deficiencies in the trial court proceedings-a sort of challenge that cannot be raised in a section 2241 petition. A section 2241 petition allows a federal prisoner to challenge the manner of execution of his sentence. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). It does not permit a challenge to the legality of his conviction; such a challenge must be brought under 28 U.S.C. § 2255. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order) (stating that a section 2255 motion is used for federal prisoners challenging the legality of a conviction). Petitioner's claim would thus need to be brought under § 2255.

         However, petitioner has missed his chance to bring a § 2255 petition. Absent rare circumstances, such a petition must be brought within one year of the date when the conviction becomes final-a strict time limit that does not apply to petitions under section 2241. Petitioner's conviction became final more than 20 years ago, and so he is nowhere near meeting the deadline for a § 2255 petition.[1] He cannot refile under that section, and he would not be helped if we were to construe his § 2241 claim as having been brought under § 2255. His insufficient evidence claim should be dismissed.[2]

         Second, petitioner argues that the order in which he is serving the components of his sentence is improper. See ECF No. 1 at 6. Currently, he is serving 365 months for possession with intent to distribute, to be followed by 60 months for use of a firearm in relation to drug trafficking. ECF No. 1 at 13. Petitioner contends that the judgment ordering him to serve the term of incarceration for his drug conviction before the term imposed for his firearm conviction increased his mandatory minimum sentence. ECF No. 6.

         Petitioner is wrong. He relies on cases in which defendants have been convicted of multiple violations of 18 U.S.C. § 924(c)-firearms crimes-in the same verdict. See United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012). In such cases, one of the convictions is treated as the first conviction, and the remaining conviction or convictions are treated as “second or subsequent” convictions. Deal v. United States, 508 U.S. 129, 132 (1993). Under § 924(c)(1)(C), first convictions are subject to varying minimum terms of incarceration, while second convictions are subject to a twenty-five year minimum. As a result, the order in which terms of incarceration are calculated under § 924(c) can affect the mandatory minimum sentence.[3]Major, 676 F.3d at 812.

         However, petitioner's situation is different. Petitioner has been convicted of one count of firearm possession under § 924(c) and one count of drug possession under 21 U.S.C. § 841(a)(1). I find no support for petitioner's argument that the order of the terms of incarceration associated with these convictions affects the mandatory minimum. Regardless of the order of his sentence components, defendant faced a five-year minimum under § 924(c)(1)(a)(i), to be served consecutively with any other incarceration component of his sentence. See Abbott v. United States, 562 U.S. 8, 13 (2010) (“[A] defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.”). Therefore, petitioner's argument lacks merit and should be dismissed.

         Given the defects identified above, petitioner cannot proceed beyond screening. I recommend that the court dismiss the petition.

         Certificate of Appealability

         A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court's denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338.

         Reasonable jurists would not disagree with our conclusion or find that the case should proceed further. Thus, the court should decline to issue a certificate of appealability.

         Findings and ...


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