United States District Court, S.D. Texas, Corpus Christi Division
BLAKE H. STOVER, Petitioner,
RUBEN SALINAS, Respondent.
MEMORANDUM AND RECOMMENDATION
B. Libby, United States Magistrate Judge
Blake Stover is in the custody of the U.S. Bureau of Prisons
at FCI Three Rivers in Three Rivers, Texas. (D.E. 1, Page 4).
He filed this pro se petition for writ of habeas
corpus seeking to have his sentence vacated. His petition was
filed pursuant to 28 U.S.C. § 2241. On February 2, 2018,
Respondent filed the pending Motion to Dismiss. (D.E. 10).
Petitioner filed a response on February 23, 2018. (D.E. 12).
For the reasons stated below, it is respectfully recommended
that Petitioner's cause of action be
DISMISSED. Alternatively, it is respectfully
recommended this Court TRANSFER this action
to the Western District of Oklahoma.
2, 2001, Petitioner was convicted of multiple manufacturing
and drug trafficking crimes by a jury in the United States
District Court for the Western District of Oklahoma,
including two counts of having violated 18 U.S.C. §
924(c)(1) (knowingly using and carrying a firearm in relation
to a drug trafficking crime) (D.E. 11-1, Page 2-3) (Counts
Two and Seven). For the two counts Petitioner seeks to
challenge in this action, Counts Two and Seven, Petitioner
received a term of 60 months and 300 months, both “not
[to] run concurrently with any other term of
confinement.” (D.E. 11-1, Page 3). His conviction was
affirmed on direct appeal. United States v. Stover,
57 F. App'x 351 (10th Cir. Dec. 31, 2002), cert.
denied, 539 U.S. 909 (2003).
24, 2004, Petitioner filed a habeas petition pursuant to 28
U.S.C. § 2255, challenging his conviction and sentence
in the Western District of Oklahoma, which was dismissed on
August 16, 2007. See United States v. Stover, Nos.
00-cr-115M, 4-cv-646M, 2007 WL 2363289 (W.D. Okla. Aug. 16,
2007). Petitioner's appeal of this denial was dismissed
on September 12, 2008 by the United States Court of Appeal
for the Tenth Circuit. United States of America v.
Stover, No. 07-6202, 292 F. App'x 755 (10th Cir.
Sept. 12, 2008) (Order Denying Certificate of Appealability
and Dismissing Appeal).
subsequently sought authorization to file a second or
successive habeas petition pursuant to 28 U.S.C. § 2255
asserting he was actually innocent of Count Two because the
evidence introduced at trial was insufficient to show he used
the gun in connection with a drug offense. United States
of America v. Stover, No. 11-6148 (10th Cir. June 14,
2011) (Order). Specifically, Petitioner argued the decision
in Watson v. United States, 552 U.S. 74
(2007),  was a new law that proved his actual
innocence within the meaning of 18 U.S.C. § 924(c)(1)
and applied to his case retroactively. United States of
America v. Stover, No. 11-6148 (10th Cir. June 14, 2011)
(Order). Petitioner's motion was denied by the Tenth
Circuit on June 14, 2011. United States of America v.
Stover, No. 11-6148 (10th Cir. June 14, 2011) (Order);
(D.E. 10-2). As reasons for the denial, the Tenth Circuit
found Watson was not a “new” case as it
was decided in 2007, did not constitute a “new rule of
constitutional law” and instead “involved a
question of statutory interpretation, ” and was not
made retroactive to cases on collateral review. Id.
The Tenth Circuit further found “Watson's
holding does not apply to the facts in Mr. Stover's
case” as “he ultimately exchanged [a] gun for
drugs.” Id. The Tenth Circuit concluded
Petitioner's “case falls squarely within the
holding of the Supreme Court's decision in
Smith” “which held that ‘a
criminal who trades his firearm for drugs ‘uses' it
during and in relation to a drug trafficking offense within
the meaning of § 924(c)(1).” Id. (citing
Smith v. United States, 508 U.S. 223, 241 (1993)).
October 30, 2017, Petitioner filed the pending habeas action
pursuant to 28 U.S.C. § 2241 asserting he is actually
innocent of the firearm offense in Counts Two and Seven as he
was convicted of trading drugs for a firearm, not a firearm
for drugs, and Watson had not yet been decided at
the time he initially sought relief pursuant to 28 U.S.C.
§ 2255. (D.E. 1).
FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
of habeas corpus pursuant to 28 U.S.C. § 2241 is the
appropriate vehicle in which “a sentenced prisoner
attacks the manner in which a sentence is carried out or the
prison authorities' determination of its duration.”
See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000) (internal citations omitted); Moorehead v.
Chandler, 540 Fed. App'x. 458 (5th Cir. 2013).
contrast, a § 2255 motion provides the primary means of
collateral attack on a federal sentence. Pack, 218
F.3d at 451. A § 2255 motion must be filed in the
sentencing court. Id.; Eckles v. Chandler,
574 Fed. App'x. 446 (5th Cir. 2014). A § 2241
petition that seeks to challenge the validity of a federal
sentence must either be dismissed or construed as a §
2255 motion. Pack, 218 F.3d at 452; Kinder v.
Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (same).
pending habeas claim challenges the validity of his
conviction and sentence on both Counts Two and Seven, rather
than the execution of his sentence. Because Petitioner's
complaint relates to the merits of his conviction, not to the
interpretation or carrying out of his sentence by the Bureau
of Prisons, Petitioner must challenge his sentence in the
sentencing court through a § 2255 action, unless he
qualifies for relief pursuant to § 2255's savings
clause. 28 U.S.C. § 2255(e).
may bring his claim pursuant to § 2241 by showing that
§ 2255 is inadequate to challenge the legality of his
conviction. Reyes-Requena v. United States, 243 F.3d
893, 901 (5th Cir. 2001); Tolliver v. Dobre, 211
F.3d 876, 877-78 (5th Cir. 2000). The savings clause provides
An application for a writ of habeas corpus on behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the