United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
2001, Defendant was convicted after a jury trial of various
drug trafficking crimes, including as relevant here the crime
of using a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A). For this crime-referred to as Count Two in the
Judgment-Defendant was sentenced to 60 months in prison. In
2002, the sentence imposed by this Court was affirmed by the
Court of Appeals for the Tenth Circuit. See United States
v. Stover, 57 Fed.Appx. 351, 352 (10th Cir. 2002).
2004, Defendant filed a motion to vacate his sentence under
28 U.S.C. § 2255 alleging ineffective assistance of
appellate counsel (Doc. No. 345). The Court denied the motion
(Doc. No. 377), and the Tenth Circuit Court of Appeals denied
Defendant's request for a certificate of appealability.
See United States v. Stover, 292 Fed.Appx. 755, 757
(10th Cir. 2008). In 2011, the Tenth Circuit Court of Appeals
denied Defendant's request for leave to file a second or
successive motion under 28 U.S.C. § 2255 (Doc. No. 424).
See 28 U.S.C. § 2255(h).
20, 2019, Defendant filed the present Motion (Doc. No. 497),
in which he asks this Court for leave to file a second or
successive motion under 28 U.S.C. § 2255, asserting
“that he has obtained newly discovered evidence that
proves his actual innocence as to Count Two.”
Def.'s Mot. (Doc. No. 497), at 1.
to his Motion, Defendant's Count Two conviction was
predicated on testimony from Gary Cooksey that Defendant gave
Cooksey two eightballs of methamphetamine in exchange for a
$95 profit earned from a gun sale. Specifically, Cooksey
testified that Defendant redeemed a rifle owned by Cooksey
from a local pawn shop for $455 and subsequently sold it to
Pence for $550. Defendant retained the $95 profit and, in
exchange, supplied Cooksey with methamphetamine. As relevant
to the present Motion, Cooksey testified that “Pence
gave Stover a check in the amount of $550 for the
rifle.” Id. at 2.
“newly discovered evidence” consists of
Pence's bank account records, which allegedly show
“no check written to [Defendant] for any amount of
money, much less one for $550 for a gun as alleged by
Cooksey.” Id. at 4. Defendant argues that this
evidence “proves his actual innocence as to Count
Two” and should have been “subpoenaed to
ascertain whether a check was written to Stover for the rifle
at issue.” Id. at 1, 4. Relatedly, Defendant
complains that “Mr. Pence was never questioned by
anyone prior to [his] trial.” Id. at 4. He
contends that “[t]he failure . . . to question Mr.
Pence and investigate exonerating evidence on
[Defendant's] behalf completely derailed the mission to
protect [Defendant] of being convicted of a crime which he
should have never been convicted of.” Id.
federal prisoner seeking to file a second or successive
motion under § 2255 must first obtain an order from a
panel of “the appropriate court of appeals . . .
authorizing the district court to consider the
application.” 28 U.S.C. §§ 2244(b)(3)(A)-(B),
2255(h); see also In re Cline, 531 F.3d 1249, 1250
(10th Cir. 2008). This requirement “transfers from the
district court to the court of appeals a screening function
which would previously have been performed by the district
court.” Felker v. Turpin, 518 U.S. 651, 664
(1996). Because this Court “is not authorized to grant
leave to file a successive § 2255 petition, ”
Defendant's Motion is misdirected. United States v.
Verdin-Garcia, No. 05-20017-01-JWL, 2016 WL 11585362, at
*1 (D. Kan. June 28, 2016).
resulting question is whether to dismiss Defendant's
Motion for lack of jurisdiction or transfer it to the Tenth
Circuit for authorization pursuant to 28 U.S.C. § 1631.
Section 1631 provides that, where jurisdiction is lacking, a
federal court “shall, if it is in the interest of
justice” transfer the action to a court where the
action “could have been brought.” 28 U.S.C.
§ 1631. The statute, as interpreted by the Tenth
Circuit, “‘grant[s] the district court discretion
in making a decision to transfer an action or instead to
dismiss the action without prejudice.'” In re
Cline, 531 F.3d at 1251 (quoting Trujillo v.
Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006)). To
assist it in making that determination, the Court ORDERS
Plaintiff United States to respond to Defendant's Motion
(Doc. No. 497) within 21 days of this Order.
 “Section 2255(h) requires a
federal prisoner seeking authorization to demonstrate that
his proposed claims either depend on ‘newly discovered
evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
found [him] guilty of the offense,' § 2255(h)(1), or
rely upon ‘a new rule of constitutional law, made
retroactive to cases on collateral review by the ...