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following Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005), and other supporting cases, in holding that "Blakely and Booker do not apply retroactively to cases pending on collateral review" after the petitioner's conviction has become final on direct appeal
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No. 05-3144.
February 4, 2008.
On Appeal from the United States District Court for the Southern District of Ohio.
Before: SUHRHEINRICH, SUTTON, and GRIFFIN, Circuit Judges.
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 direct appeal, a panel of this court affirmed Taniguchi's conviction and sentence. See United States v. Taniguchi 49 Fed.Appx. 506, 521 (6th Cir. 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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 Sancliez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). Taniguchi did not file a petition for 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.