NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0093n.06
Filed: February 4, 2008
No. 05-3144
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAY KEVIN TANIGUCHI, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, ) SOUTHERN DISTRICT OF OHIO
)
Respondent-Appellee. )
Before: SUHRHEINRICH, SUTTON, and GRIFFIN, Circuit Judges.
PER CURIAM. Jay Kevin Taniguchi challenges the district court’s denial of his § 2255
motion to vacate his sentence. Because Taniguchi’s challenge is foreclosed by precedent, we affirm.
In July 2000, Taniguchi stood trial in federal court on charges stemming from a conspiracy
to rob armored cars and local businesses in the Columbus, Ohio metropolitan area. On July 24, after
a two-week trial, a jury found Taniguchi guilty of three Hobbs Act violations, see 18 U.S.C. § 1951,
two use-of-firearm-during-commission-of-a-felony violations, see id. § 924(c), and bank larceny,
see id. § 2113(b). The district court sentenced Taniguchi to four concurrent 120-month prison terms
for the Hobbs Act and bank larceny convictions and two consecutive terms of 84 and 300 months
for the firearm violations, leaving Taniguchi with a total of 504 months’ imprisonment. JA 80. On
No. 05-3144
Taniguchi v. United States
direct appeal, a panel of this court affirmed Taniguchi’s conviction and sentence. See United States
v. Taniguchi, 49 F. App’x 506, 521 (6th Cir. Oct. 11, 2002).
On September 2, 2003, Taniguchi filed a § 2255 motion, alleging seven constitutional
violations that occurred during his trial and direct appeal. The district court denied Taniguchi’s
motion, declined to issue a certificate of appealability (COA) on six of the claims, and granted a
COA on one claim: Is Blakely v. Washington, 542 U.S. 296 (2004), retroactively applicable, and,
if so, does Taniguchi’s sentence violate Blakely?
“Generally speaking, federal habeas corpus petitioners may not rely on new rules of criminal
procedure handed down after their convictions have become final on direct appeal.” Humphress v.
United States, 398 F.3d 855, 860 (6th Cir. 2005) (footnote omitted). In Humphress, we held that
Blakely and Booker do not apply retroactively to cases pending on collateral review. Id. at 863. In
doing so, we reasoned that Humphress’ conviction became final before Blakely and Booker, id. at
860, that “[t]he Booker rule is clearly new,” id. at 861, and that Humphress’ case did not fall within
an exception to the general rule of non-retroactivity, id. at 862–63.
Humphress governs Taniguchi’s appeal. As for the first prong of the retroactivity
analysis—whether the conviction became final before Blakely and Booker—Taniguchi’s conviction
unquestionably did. A defendant’s conviction becomes final upon the expiration of the 90-day
period in which he could have petitioned for certiorari to the Supreme Court. See Sanchez-
Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). Taniguchi did not file a petition for
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No. 05-3144
Taniguchi v. United States
certiorari, so his conviction became final in January of 2003, 90 days after we denied his direct
appeal. Blakely, decided in 2004, and Booker, decided in 2005, postdate Taniguchi’s conviction.
As for the remaining two prongs—whether the decision in question constitutes a “new rule” and if
so, whether it fits into one of two exceptions, either as a rule that forbids punishment of primary
conduct or that establishes a watershed rule of criminal procedure—we are bound by Humphress.
As a panel, we of course lack authority to reconsider Humphress, see Brown v. Cassens Transp. Co.,
492 F.3d 640, 646 (6th Cir. 2007), which we have consistently applied, see, e.g., United States v.
Carter, 500 F.3d 486, 491 (6th Cir. 2007); Valentine v. United States, 488 F.3d 325, 331 (6th Cir.
2007); Lang v. United States, 474 F.3d 348, 353 (6th Cir. 2007); United States v. Saikaly, 424 F.3d
514, 517 (6th Cir. 2005). As Taniguchi did not obtain a COA on any other argument, his appeal
necessarily fails.
For these reasons, we affirm.
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