Garmany v. United States

MEMORANDUM ^**

Harold Jerry Garmany appeals the district court’s order dismissing his second motion brought pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Garmany contends that the Supreme Court established a new rule of constitutional law applying retroactively to cases on collateral review in Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (holding that to convict a defendant under the ‘continuing criminal enterprise’ statute, 21 U.S.C. § 848(a), “a jury has to agree unanimously about which specific violations make up the ‘continuing series of violations’ ”). Garmany’s contention is squarely foreclosed by our decision in United States v. Reyes, 358 F.3d 1095, 1096 (9th Cir.2004) (per curiam) (concluding that “Richardson did not decide a ‘new rule of constitutional law1 as required “as a prerequisite to a second habeas petition”). Thus, the district court was required to dismiss the petition under 28 U.S.C. § 2255. See id.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.