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Stover v. Salinas

United States District Court, S.D. Texas, Corpus Christi Division

May 14, 2018

BLAKE H. STOVER, Petitioner,
v.
RUBEN SALINAS, Respondent.

          ORDER

          HILDA TAGLE, SENIOR UNITED STATES DISTRICT JUDGE

         The Court has received the government's motion to dismiss, Dkt. No. 10, the Magistrate Judge's Memorandum and Recommendation (“M&R”), Dkt. No. 13, and Petitioner's objections to the M&R, Dkt. No. 15. For the reasons below, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R and GRANTS the motion to dismiss.

         I. Background

         The Court adopts the Magistrate Judge's description of the case history:

On July 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).[1] 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 Fed.Appx. 351 (10th Cir. Dec. 31, 2002), cert. denied, 539 U.S. 909 (2003).
On May 24, 2004, Petitioner filed a habeas petition pursuant to 29 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 Fed.Appx. 755 (10th Cir. Sept. 12, 2008) (Order Denying Certificate of Appealability and Dismissing Appeal).
Petitioner subsequently sought authorization to file a second or successive habeas petition pursuant to 29 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), [2] 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 Tentch 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)).
On 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 direarm 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).

M&R, Dkt. No. 13 at 1-3.

         II. Legal Standard

         The Court adopts the Magistrate Judge's description of applicable law:

A writ 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. 200) (internal citations omitted); Moorehead v. Chandler, 540 Fed. App'x. 458 (5th Cir. 2013).
In 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. Purd, 222 F.3d 209, 212 (5th Cir. 2000) (same).
Petitioner's 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 ยง 2255 ...

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