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Stover v. Salinas
United States District Court, S.D. Texas, Corpus Christi Division
May 14, 2018
BLAKE H. STOVER, Petitioner,
RUBEN SALINAS, Respondent.
TAGLE, SENIOR UNITED STATES DISTRICT JUDGE
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.
Court adopts the Magistrate Judge's description of the
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). 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),  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.
Court adopts the Magistrate Judge's description of
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 § 2255
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