United States v. Vise ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 29, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-6247
(D.C. Nos. 03-CV-376 and
EWING HIRATA VISE, 98-CR-81-M)
(W.D. Okla.)
Defendant-Appellant.
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This order and judgment is not binding precedent, except under the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 court’s 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 Court’s 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. Vise’s 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.
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This court has noted a possible jurisdictional flaw raising the question
whether Mr. Vise’s 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. Vise’s 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. Vise’s 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, Blakely does
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not apply to Mr. Vise’s § 2255 motion. 1
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
1
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.
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