Stover v. Salinas

Filing 16

ORDER entered. The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R, 13 , GRANTS the government's motion to dismiss, 10 , and DISMISSES Petitioner's habeas action. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BLAKE H. STOVER,
Petitioner,
VS.
RUBEN SALINAS,
Respondent.

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May 15, 2018
David J. Bradley, Clerk

CIVIL NO. 2:17-CV-341

ORDER
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

For his other convictions on the other counts not at issue in this case, Petitioner originally received
a life sentence. (D.E. 11-1, Page 3). Specifically, Petitioner received a sentence of life on Count 1
(conspiracy to manufacture, to possess with intent to distribute methamphetamine and cocaine).
(D.E. 11-1, Pages 2–3). Petitioner also received 240 months on Counts 3, 4, 10 and 12; 480 months on
Counts 8 and 11, both not to run concurrently with any other term of confinement; and 120 months
on Count 13 to run concurrently. (D.E. 11-1, Page 3). However, on September 7, 2016, Petitioner
received a sentence reduction pursuant to 18 U.S.C. § 3582(c), reducing his life sentence under Count
1 to 360 months and under Counts 8 and 11 to 360 months. (D.E. 10-5). Sentences on the other
counts remain unchanged. (D.E. 10-5).
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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).
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 F. App’x 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
In Watson, the Supreme Court held that a defendant cannot be convicted of “using” a firearm
during the commission of a drug offense pursuant to 18 U.S.C. § 924(c) when he merely received it in
exchange for drugs. 552 U.S. at 76, 83. The Court did not overrule existing precedent conversely
holding that the act of trading a firearm for drug properly falls with[in] the ambit of § 924(c). Id. at
79–81 (distinguishing Smith v. United States, 508 U.S. 223 (1993).
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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 § 2255 action unless he
qualifies for relief pursuant to § 2255’s savings clause, 28, U.S.C. §
2255(e).
Petitioner 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 as follows:
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
remedy by motion is inadequate or ineffective to test the
legality of his detention.
28 U.S.C. § 2255(2) (emphasis added).

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A petitioner must satisfy a stringent two-prong test before he
may invoke the savings clause of § 2255(e). The savings clause applies
to a claim (i) that is based upon a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense, and (ii) that was foreclosed by
circuit law at the time the claim should have been raised at trial, on
appeal, or first § 2255 motion. Reyes-Requena, 243 F.3d at 904. Under
such circumstances, it can be fairly said that the remedy by a
successive § 2255 motion is inadequate.
M&R, Dkt. No. 13 at 4–5.
III.

Analysis

The Magistrate Judge concluded that Petitioner’s habeas action should be
dismissed because the Tenth Circuit has already found that Watson does not apply
to Petitioner’s case and there is insufficient evidence to conclude that the Tenth
Circuit’s finding was incorrect. M&R, Dkt. No. 13 at 5. Petitioner objects that the
Tenth-Circuit opinion cannot be read as a controlling merits opinion because it was
deciding a jurisdictional issue under a different standard, and alternatively that
transcripts from Petitioner’s trial show that he “was convicted for exactly what
Watson v. United States, 552 U.S. 74 (2007) declared to be lawful: Stover traded his
drugs for [a] gun.” Dkt. No. 15 at 3.
The Court need not consider the issue of the Tenth Circuit’s earlier opinion
because the Court finds that Petitioner’s case must be dismissed for a
straightforward reason: his argument that he did not use a firearm in connection
relation to a drug trafficking crime was not foreclosed by circuit law during his trial,
appeal, and first § 2255 action. The Court therefore declines to adopt the Magistrate
Judge’s basis for dismissing Petitioner’s habeas action.
Even assuming that Petitioner is right that he traded drugs for a firearm,
Tenth-Circuit caselaw at the time of his conviction, appeal, and first § 2255 action
did not foreclose him from arguing that this exchange does not constitute “use” of a
firearm for purposes of 18 U.S.C. § 924(c)(1). Petitioner relies on a case from the
Northern District of Oklahoma, Jones v. United States, which stated that before

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Watson, “trading drugs for a gun was understood to constitute ‘use’ of the gun in
violation of [§ 924(c)(1)].” 2008 U.S. Dist. LEXIS 37743, at *6 (N.D. Okla. May 8,
2008). The court cited one unpublished Tenth-Circuit opinion that concluded that a
defendant had “used” a firearm when he attempted to obtain firearms by trading
drugs for them. United States v. Rayford, 1996 U.S. App. LEXIS 21804, at *4-5
(10th Cir. Aug. 23, 1996) (finding that this constituted “bartering” a firearm).
A mere unpublished appellate opinion does not foreclose subsequent cases
involving similar facts. Only “if an argument falls within the scope of, and is
excluded by, a prior holding of a controlling case, [is it] foreclosed by that case.”
Garland v. Roy, 615 F.3d 391, 398 (5th Cir. 2010). Rayford was not a controlling
case; it therefore did not foreclose an argument that trading drugs for weapons does
not constitute “use” of a firearm. Petitioner has offered no further support for his
contention that his current argument was foreclosed at the time of his trial, appeal,
and first § 2255 action.
The Supreme Court apparently recognized that the Tenth Circuit had not yet
decided the drugs-for-gun “use” issue when it decided Watson. In Watson, the Court
stated that it had “granted certiorari to resolve a conflict among the Circuits on
whether a person ‘uses’ a firearm within the meaning of [§ 924(c)(1)] when he trades
narcotics to obtain a gun.” Watson, 552 U.S. at 78. The Court then included a
footnote describing which circuits had found that a drugs-for-gun trade constituted
“use” and which had found that it did not. Id. at 78 n. 5. The Second and Tenth
Circuits were not mentioned in the footnote, which indicated that they had not
resolved the issue either way. Id. This further demonstrates that the Tenth Circuit
had no controlling caselaw on the issue pre-Watson.
Petitioner’s argument that his conduct did not constitute “use” of a firearm
was therefore available to him at the time of his trial, appeal, and first § 2255
action. Because Petitioner has failed to show that his argument was previously
foreclosed by Tenth-Circuit law, he does not meet the requirements of § 2255’s
savings clause and his habeas action must be dismissed.

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IV.

Conclusion
Accordingly, the Court ADOPTS IN PART and DECLINES TO ADOPT IN

PART the M&R, Dkt. No. 13, GRANTS the government’s motion to dismiss, Dkt.
No. 10, and DISMISSES Petitioner’s habeas action.
Final Judgment will be entered separately.
SIGNED this 14th day of May, 2018.
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Hilda Tagle
Senior United States District Judge

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