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    United States v. Vise, 10th Cir. (2005)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a §2255 motion filed by Ewing Hirata Vise challenging his sentence. The district court granted a certificate of appealability on two issues: 1) whether Blakely v. Washington applies retroactively to initial §2255 motions and 2) if so, whether Vise's sentence involved unconstitutional judicial fact finding. The appeals court determined that under United States v. Price, Blakely does not apply retroactively to cases that were final when Blakely was decided, such as Vise's. Therefore, the court affirmed the district court's denial of Vise's §2255 motion without addressing the

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    United States v. Vise, 10th Cir. (2005)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a §2255 motion filed by Ewing Hirata Vise challenging his sentence. The district court granted a certificate of appealability on two issues: 1) whether Blakely v. Washington applies retroactively to initial §2255 motions and 2) if so, whether Vise's sentence involved unconstitutional judicial fact finding. The appeals court determined that under United States v. Price, Blakely does not apply retroactively to cases that were final when Blakely was decided, such as Vise's. Therefore, the court affirmed the district court's denial of Vise's §2255 motion without addressing the

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    Filed: 2005-11-29 Precedential Status: Non-Precedential Docket: 04-6247

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    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a §2255 motion filed by Ewing Hirata Vise challenging his sentence. The district court granted a certificate of appealability on two issues: 1) whether Blakely v. Washington applies retroactively to initial §2255 motions and 2) if so, whether Vise's sentence involved unconstitutional judicial fact finding. The appeals court determined that under United States v. Price, Blakely does not apply retroactively to cases that were final when Blakely was decided, such as Vise's. Therefore, the court affirmed the district court's denial of Vise's §2255 motion without addressing the

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    28 views4 pages

    United States v. Vise, 10th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    The document is an order from the United States Court of Appeals for the Tenth Circuit regarding a §2255 motion filed by Ewing Hirata Vise challenging his sentence. The district court granted a certificate of appealability on two issues: 1) whether Blakely v. Washington applies retroactively to initial §2255 motions and 2) if so, whether Vise's sentence involved unconstitutional judicial fact finding. The appeals court determined that under United States v. Price, Blakely does not apply retroactively to cases that were final when Blakely was decided, such as Vise's. Therefore, the court affirmed the district court's denial of Vise's §2255 motion without addressing the

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    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    November 29, 2005


    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    EWING HIRATA VISE,
    Defendant-Appellant.

    No. 04-6247
    (D.C. Nos. 03-CV-376 and
    98-CR-81-M)
    (W.D. Okla.)

    ORDER AND JUDGMENT

    Before KELLY, McKAY , and McCONNELL , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.

    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    Defendant-appellant Ewing Hirata Vise, a federal prisoner proceeding


    pro se, appeals the district courts order denying his motion to vacate, set aside,
    or correct his sentence, filed pursuant to 28 U.S.C. 2255. Mr. Vise was
    convicted on guilty pleas of manufacturing methamphetamine and possession of a
    firearm by a convicted felon. He was sentenced to 188 months imprisonment
    following a remand by this court,

    see United States v. Vise , No. 99-6230, 2000

    WL 485174, at **1 (10th Cir. Apr. 25, 2000), and that sentence was affirmed on a
    subsequent appeal, United States v. Vise , 21 Fed. Appx. 827, 828 (10th Cir.
    2001), cert. denied , 535 U.S. 948 (2002).
    The district court granted a certificate of appealability (COA) on the
    following issues:
    (1)

    Whether the Supreme Courts decision in


    Blakely v.
    Washington , [542 U.S. 296] (2004) applies retroactively to
    cases on collateral review by way of initial 2255 motions?

    (2)

    If the answer to the first question is yes, whether, under


    Blakely , Mr. Vises sentence is the result of unconstitutional
    judicial fact finding on the issue of drug quantity?

    R. doc. 191, at 2. Accordingly, this court has jurisdiction to review these issues.
    28 U.S.C. 2253(c)(1)(B) (authorizing appeal from issues for which a COA is
    granted). We do not consider the other issues Mr. Vise argues on appeal; his
    petition for issuance of a COA as to those issues is denied.

    -2-

    This court has noted a possible jurisdictional flaw raising the question
    whether Mr. Vises notice of appeal was filed timely and implicating the prison
    mailbox rule. In response to our show cause order, the government concedes that
    the notice of appeal was timely. Our review of the records showing service and
    filing dates confirms this conclusion. Consequently, this court has appellate
    jurisdiction, and we consider the issues covered by the COA.
    The first issue was decided against Mr. Vises position in the interim after
    the district court granted COA. This court held that

    Blakely does not apply

    retroactively to convictions that were already final at the time the [Supreme]
    Court decided Blakely , June 24, 2004.

    United States v. Price , 400 F.3d 844, 849

    (10th Cir. 2005), petition for cert. filed , (U.S. May 31, 2005) (No. 04-10694).
    This holding applies specifically to collateral review of convictions that were
    final when Blakely was decided. United States v. Bellamy , 411 F.3d 1182, 1186
    (10th Cir. 2005). Mr. Vises conviction became final when the Supreme Court
    denied his petition for a writ of certiorari on March 18, 2002, more than two years
    before Blakely was announced.

    See Price , 400 F.3d at 846 (stating conviction

    becomes final when Supreme Court denies certiorari). Therefore,

    -3-

    Blakely does

    not apply to Mr. Vises 2255 motion.

    Because we answer the first question of

    the COA in the negative, we need not address the second question.
    The jurisdictional show cause is discharged. The judgment of the district
    court is AFFIRMED.

    Entered for the Court

    Paul J. Kelly, Jr.


    Circuit Judge

    Although the COA was issued before the Supreme Court announced
    United
    States v. Booker , 125 S. Ct. 738, 755 (2005) (applying
    Blakely s holding to
    Federal Sentencing Guidelines), Bellamy also holds that Booker is not applicable
    retroactively on collateral review.
    Bellamy , 411 F.3d at 1186-88.
    1

    -4-

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