Lucero v. McDonald

Filing 72

ORDER GRANTING Application for Writ of Habeas Corpus with respect to claim that conviction for possession of shank violated Jackson; Respondent shall vacate Petitioners conviction for possession of a shank in violation of California Penal Code § 4502(a); Respondent is ordered to recalculate Petitioners sentence in accordance with this Order, signed by District Judge Anthony W. Ishii on 10/29/2018. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT ANDREW LUCERO,

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No. 1:10-cv-01714-AWI-SKO (HC)

Petitioner,
v.

ORDER

KIM HOLLAND, Warden,
Respondent.

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Petitioner, Albert Andrew Lucero, is a state prisoner proceeding through counsel with an
application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his petition for
writ of habeas corpus on September 10, 2010, alleging five grounds for habeas relief: (1) improper

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admission of evidence; (2) violation of Petitioner’s right to confrontation; (3) insufficient evidence;
(4) violation of Petitioner’s Due Process Rights; and (5) state law errors.

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On December 11, 2014, the Magistrate Judge filed findings and recommendations in which

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she recommended that the Court dismiss Petitioner’s state law claims, deny the petition, enter

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judgment for Respondent, and decline to issue a certificate of appealability. On March 23, 2015,

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Petitioner filed objections to the findings and recommendations. After reviewing the record de
novo and considering Petitioner’s objections, the Court declined to modify the findings and

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recommendations and adopted them in full on May 15, 2015.
On August 31, 2018, the United States Court of Appeals for the Ninth Circuit affirmed in
part, reversed in part, and remanded the petition with instructions for this Court to grant Petitioner’s

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petition for writ of habeas corpus on his claim that his conviction for possession of a shank while
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in custody (Cal. Penal Code §4502(a)) violated Jackson v. Virginia, 443 U.S. 307 (1979).

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After trial, Petitioner was convicted of premeditated attempted murder (count 1), possession

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of a shank while in jail or prison (count 3), and participation in a street gang (count 4). He was

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sentenced to an indeterminate term of 30 years to life on count 1 and a consecutive determinate

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term of eight years on counts 3 and 4.
In accordance with the foregoing, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for writ of habeas corpus is granted with respect to his claim
that his conviction for possession of shank violated Jackson;

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2.

Respondent shall vacate Petitioner’s conviction for possession of a shank in violation
of California Penal Code § 4502(a); and

3. Respondent is ordered to recalculate Petitioner’s sentence in accordance with this Order.

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IT IS SO ORDERED.
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Dated: October 29, 2018
SENIOR DISTRICT JUDGE

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