United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS AT SCREENING ECF NO.
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.
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
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.
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
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. 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
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.
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.Major, 676 F.3d at 812.
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
the defects identified above, petitioner cannot proceed
beyond screening. I recommend that the court dismiss the
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.
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.