United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
Jay Taniguchi is an inmate confined by the Bureau of Prisons in the Federal Correctional Institution-Manchester located in Manchester, Kentucky. Proceeding without counsel, Taniguchi has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging the federal drug and firearm sentences which he is currently serving. Taniguchi has paid the $5.00 filing fee. [R. 3]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Taniguchi's petition under a more lenient standard because he is not represented by an attorney, Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). The Court also accepts his factual allegations as true and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
As explained below, the Court will deny Taniguchi's habeas petition because the claims which he asserts cannot be pursued under 28 U.S.C. § 2241.
Taniguchi and James W. White were both part of a broad-ranging conspiracy to rob armored car companies and local businesses of cash at gunpoint. On March 14, 2000, a grand jury in the Ohio returned a six-count indictment against Taniguchi and White. United States v. Jay Taniguchi, et al., No. 2:00-CR-50 (S.D. Ohio, 2000) Count one charged Taniguchi and White with violation of the Hobbs Act, 18 U.S.C. § 1951, for their participation in a broad conspiracy involving multiple robberies; Count two charged Taniguchi and White with violating the Hobbs Act for their participation in the Metropolitan armored truck robbery; Count three charged White with brandishing a firearm in the commission of those crimes, in violation of 18 U.S.C. § 924(c); Count four charged Taniguchi with brandishing a firearm in the commission of those crimes in violation of 18 U.S.C. § 924(c); Count five charged Taniguchi with a violation of the Hobbs Act for participation in the Red Zone robbery; and Count six charged Taniguchi with a violation of § 924(c), brandishing a firearm during a crime of violence. In May 2000, a superseding indictment was filed, repeating the other charges but also adding a bank larceny charge, in violation of 18 U.S.C. § 2113(b), against Taniguchi and White.
Taniguchi and White both pleaded not guilty to these charges, and the case proceeded to trial. On July 24, 2000, the jury returned its verdict, finding Taniguchi and White guilty on all counts. Taniguchi was sentenced to four concurrent 120 month prison terms for the two Hobbs Act and bank larceny convictions and two consecutive sentences of 84 and 300 months on the two firearm violations, resulting in a total prison term of 504 months; White received a 78-month sentence on the two Hobbs Act violations, and a consecutive 84-month sentence on the one firearm violation.
Taniguchi and White appealed, but their convictions and sentences were affirmed. United States v. Taniguchi, 49 F.Appx. 506, 508-10 (6th Cir. Oct. 11, 2002) On appeal, both Taniguchi and White argued, among other things, that insufficient evidence existed to convict them of brandishing a firearm in the commission of a robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). After lengthy analysis, the Sixth Circuit rejected both defendants' challenges to their § 924(c) convictions, finding that as to Taniguchi, "... the evidence supporting his guilt on these charges is considerable." Taniguchi, 49 F.Appx. at 511. The Sixth Circuit concluded that the trial testimony established that Taniguchi's conduct of procuring the firearms used in the robberies qualified him as an aider and abettor to his cohort's brandishing of a firearm during the robberies. Id., at 511-12.
Taniguchi also argued on appeal that the district court improperly enhanced his sentence under §§ 924(c)(1)(A)(ii) and (C), based on its incorrect determination that he had a second or subsequent conviction. Taniguchi, 49 F.Appx. at 517. Taniguchi argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government should have been required to prove to the jury, beyond a reasonable doubt, any and all facts supporting sentence enhancements, rather than the district court determining those facts. Id.
The district court rejected Taniguchi's argument that his "second or subsequent conviction" leading to a § 924(c)(1)(C) enhancement should have been submitted to a jury and proved beyond a reasonable doubt. Id. The court explained that: (1) where a defendant is charged and convicted of separate offenses to which § 924(c) applies, then those convictions are eligible to count as both the first and the "second or subsequent conviction" under § 924(c); and
(2) because the fact of his prior conviction was exempted from the mandate of Apprendi, Taniguchi was not entitled to a jury finding that he has a prior conviction. Id., at 517-18 ("Both the Supreme Court and this Court have found that a simultaneous conviction of separate offenses eligible under § 924(c)(1)(C) is sufficient to satisfy the "second or subsequent conviction" language of this statute.")
The Sixth Circuit acknowledged, however, that a "more difficult question" existed as to whether the factual finding behind the brandishing enhancement of seven years under § 924(c)(1)(A)(ii) should have been submitted to a jury and proven beyond a reasonable doubt. Id., at 518. The court ultimately determined that the factual finding supporting that sentencing enhancement did not have to be submitted to a jury, based on Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406 (2002), which held that the brandishing enhancement was a sentencing factor, not an element of the offense that must be submitted to a jury and proved beyond a reasonable doubt. Id. (citing Harris, 122 S.Ct. at 2414). The Sixth Circuit therefore determined that Taniguchi's argument on that issue lacked merit.
On September 11, 2003, Taniguchi filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging seven constitutional violations that occurred during his trial and on direct appeal. See Taniguchi Criminal Case, No. 2:00-CR-50-ALM-TPK [R. 118, therein] One of the argument which Taniguchi asserted was that that he had been denied the effective assistance of appellate counsel, claiming that during oral argument on direct appeal, his attorney had misstated material facts regarding the sufficiency of evidence as to his conviction on Count Four (brandishing a firearm in the commission of a robbery, in violation of 18 U.S.C. §924(c)). On November 15, 2004, the Magistrate Judge issued a 36-page Report and Recommendation ("R & R") to deny Taniguchi's §2255 motion, finding that none of his arguments had merit. [R. 143, therein]
On January 12, 2005, the district adopted the Magistrate Judge's R & R and denied Taniguchi's § 2255 motion. [R. 152, therein] On appeal, the Sixth Circuit declined to issue a certificate of appealabilty ("COA") as to six of Taniguchi's claims, but did grant a COA on the issue of whether Blakely v. Washington, 542 U.S. 296 (2004) was retroactively applicable, and if so, whether Taniguchi's sentence violated Blakely. [R. 188, therein; see also Taniguchi v. United States, No. 05-3144 (6th Cir. Feb. 17, 2006)]
Almost two years later, the Sixth Circuit rejected Taniguchi's Blakely claim, citing its earlier decision Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005), which held that Blakely did not apply retroactively to cases on collateral review, and noting that Taniguchi's conviction became final before Blakely was rendered. [R. 208, therein; see also Taniguchi v. United States, No. 05-3144 (6th Cir. Feb. 4, 2008)] The Court determined that Taniguchi's appeal failed because he did not obtain a COA as to any other issue.
CLAIMS ASSERTED IN THE § 2241 PETITION
Taniguchi argues that pursuant to Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), the Supreme Court reinterpreted the meaning of the statute under which he was convicted, rendering him factually innocent as to Count Four and Count Six of his conviction of 18 U.S.C. §§ 924 (c) and 2, Aiding and Abetting the brandishing of a firearm during and in relation to a crime of violence.
In Rosemond, the Court held that "[a]n active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun" and also held that the aiding-and-abetting conviction "requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime." Id. at 1248-49. "[T]he intent must go to the specific and entire crime charged"; so, for example, in Rosemond, to the full scope of a § 924(c) violation-predicate drug crime plus gun use. Id. at 1248. The Court explained that, "[t]o aid and abet a crime, a defendant must not just in some sort associate himself with the venture, ' but also ...