1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDOLPH LUCERO, Case No. 1:19-cv-00829-AWI-JDP 12 Petitioner, FINDINGS AND RECOMMENDATION

THAT COURT DISMISS PETITION FOR

13 v. WRIT OF HABEAS CORPUS AT

SCREENING

14 G. PUENTES, ECF No. 1 15 Respondent. 16 17 Petitioner Rudolph Lucero, a federal prisoner without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2241. ECF No. 1. On November 23, 1998, petitioner was convicted of 19 drug possession with intent to distribute and use of a firearm in relation to drug trafficking. See 20 ECF No. 1 at 13. Petitioner was sentenced to 365 months on the drug charge and 60 months on 21 the firearm charge. The sentencing judge determined that the terms of incarceration would be 22 served consecutively, for a total of 425 months—over 35 years. Petitioner has served more than 23 21 years of his sentence. See ECF No. 1 at 19. In his habeas petition, he argues (1) that the 24 evidence at trial was insufficient for his conviction on the use of a firearm count, and (2) that his 25 mandatory minimum sentence was wrongfully increased when he was made to serve the term of 26 incarceration associated with his drug conviction before that associated with his firearm 27 conviction. See ECF No. 1 at 2. 28 1 Petitioner’s first claim fails because he did not file the claim under the correct statute or in 2 a timely manner. His second claim is meritless. I recommend that the petition be dismissed at 3 screening. 4 Discussion 5 The matter is before the court for preliminary review under Rule 4 of the Rules Governing 6 Section 2254 Cases. Under Rule 4, the judge assigned to a habeas proceeding must examine the 7 habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled 8 to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 9 F.3d 1124, 1127 (9th Cir. 1998). Here, it plainly appears that petitioner is not entitled to relief. 10 First, petitioner argues that he should not have been convicted of firearm use because the 11 evidence at trial was insufficient. Specifically, he argues that there was “obvious court error” at 12 trial because the gun involved in his case was not “test fired, tied to [p]etitioner, nor declared 13 anything but the antique piece of art that it was.” ECF No. 7. This is a challenge to deficiencies 14 in the trial court proceedings—a sort of challenge that cannot be raised in a section 2241 petition. 15 A section 2241 petition allows a federal prisoner to challenge the manner of execution of his 16 sentence. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). It does not permit a 17 challenge to the legality of his conviction; such a challenge must be brought under 28 U.S.C. 18 § 2255. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order) (stating that a section 19 2255 motion is used for federal prisoners challenging the legality of a conviction). Petitioner’s 20 claim would thus need to be brought under § 2255. 21 However, petitioner has missed his chance to bring a § 2255 petition. Absent rare 22 circumstances, such a petition must be brought within one year of the date when the conviction 23 becomes final—a strict time limit that does not apply to petitions under section 2241. Petitioner’s 24 conviction became final more than 20 years ago, and so he is nowhere near meeting the deadline 25 for a § 2255 petition. 1 He cannot refile under that section, and he would not be helped if we were 26 1 The limitations period of section 2255(f) may be extended to one year from the removal of an 27 impediment to making a motion created by governmental action, one year from the recognition of a new right by the Supreme Court that is applicable to the case, or one year from the date on 28 which facts supporting the claim could have been discovered through due diligence. Here, absent 1 to construe his § 2241 claim as having been brought under § 2255. His insufficient evidence 2 claim should be dismissed.2 3 Second, petitioner argues that the order in which he is serving the components of his 4 sentence is improper. See ECF No. 1 at 6. Currently, he is serving 365 months for possession 5 with intent to distribute, to be followed by 60 months for use of a firearm in relation to drug 6 trafficking. ECF No. 1 at 13. Petitioner contends that the judgment ordering him to serve the 7 term of incarceration for his drug conviction before the term imposed for his firearm conviction 8 increased his mandatory minimum sentence. ECF No. 6. 9 Petitioner is wrong. He relies on cases in which defendants have been convicted of 10 multiple violations of 18 U.S.C. § 924(c)—firearms crimes—in the same verdict. See United 11 States v. Major, 676 F.3d 803, 812 (9th Cir. 2012). In such cases, one of the convictions is 12 treated as the first conviction, and the remaining conviction or convictions are treated as “second 13 or subsequent” convictions. Deal v. United States, 508 U.S. 129, 132 (1993). Under 14 § 924(c)(1)(C), first convictions are subject to varying minimum terms of incarceration, while 15 second convictions are subject to a twenty-five year minimum. As a result, the order in which 16 terms of incarceration are calculated under § 924(c) can affect the mandatory minimum sentence.3 17 Major, 676 F.3d at 812.

18 a showing that one of these situations exists, the statute of limitations ran on November 23, 19 1999—one year after the judgment became final. 2 Even if petitioner had filed under the correct statute and in a timely manner, his claim would 20 likely have failed on the merits. Petitioner claims that the antique gun exception should apply to his conviction for firearm use. The antique gun exception is a narrowly-tailored exception for 21 collectors of either guns manufactured before 1898 or replicas of the same. See 18 U.S.C. § 921(a)(16)(A-C). Petitioner has neither claimed that he is an antique gun collector nor that the 22 gun in question was manufactured before 1898 or a replica. 23 3 For example, consider a defendant convicted of (1) brandishing a firearm and (2) discharging a firearm—both in the course of a crime of violence. A first conviction for brandishing a firearm 24 carries a seven-year mandatory minimum term of incarceration and a first conviction for discharging a firearm carries a mandatory ten-year minimum term—while a second or subsequent 25 conviction of either crime carries a 25-year minimum. 18 U.S.C. § 924(c)(1)(A)(ii-iii). If the sentencing judge calculates the term for brandishing before that for discharging, the defendant 26 will be sentenced to at least seven years for the first conviction of brandishing and at least twenty- 27 five years for the second conviction of discharging, for a total minimum of thirty-two years. On the other hand, if the sentencing judge places discharging before brandishing, the defendant will 28 be sentenced to at least ten years for discharging, followed by at least twenty-five years for 1 2 However, petitioner’s situation is different. Petitioner has been convicted of one count of 3 firearm possession under § 924(c) and one count of drug possession under 21 U.S.C. § 841(a)(1). 4 I find no support for petitioner’s argument that the order of the terms of incarceration associated 5 with these convictions affects the mandatory minimum. Regardless of the order of his sentence 6 components, defendant faced a five-year minimum under § 924(c)(1)(a)(i), to be served 7 consecutively with any other incarceration component of his sentence. See Abbott v. United 8 States, 562 U.S. 8, 13 (2010) (“[A] defendant is subject to a mandatory, consecutive sentence for 9 a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher 10 mandatory minimum on a different count of conviction.”). Therefore, petitioner’s argument lacks 11 merit and should be dismissed. 12 Given the defects identified above, petitioner cannot proceed beyond screening. I 13 recommend that the court dismiss the petition. 14 Certificate of Appealability 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 17 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 18 requires a district court to issue or deny a certificate of appealability when entering a final order 19 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 20 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 21 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 22 standard requires the petitioner to show that “jurists of reason could disagree with the district 23 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 24 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack 25 v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the 26 brandishing, for a total minimum of thirty-five years. In these scenarios, the ordering of sentence 27 components matters, and “convictions should be ordered to minimize the mandatory minimum sentence.” United States v. Major, 676 F.3d 803, 814 (9th Cir. 2012); see also United States v. 28 Washington, 714 F.3d 962 (6th Cir. 2014). 1 | absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338. 2 Reasonable jurists would not disagree with our conclusion or find that the case should 3 | proceed further. Thus, the court should decline to issue a certificate of appealability. 4 | Findings and recommendations 5 I recommend that the court dismiss the case at screening and decline to issue a certificate 6 | of appealability. ECF No. 1. 7 Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the 8 | United States District Court, Eastern District of California, these findings and recommendations 9 | are submitted to the United States District Court Judge who presides over this case. Within 10 | fourteen days of the service of the findings and recommendations, any party may file written 11 | objections to the findings and recommendations with the court and serve a copy on all parties. 12 | That document must be captioned “Objections to Magistrate Judge’s Findings and 13 | Recommendations.” The presiding District Judge will then review the findings and 14 | recommendations under 28 U.S.C. § 636(b)(1)(C). 15 16 IT IS SO ORDERED. 17 ( Caan Dated: _ November 7, 2019 18 UNIT#D STATES MAGISTRATE JUDGE 19 20 21 No. 206. 22 23 24 25 26 27 28