Deangelo Whiteside v. United States

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7152

DEANGELO MARQUIS WHITESIDE,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00069-MR-1; 1:12-cv-00118-MR)

Argued: September 18, 2014 Decided: December 19, 2014

Before TRAXLER, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING,
GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, THACKER and
HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler, and Judges Niemeyer,
Motz, King, Shedd, Duncan, Agee, Keenan, Floyd, Thacker and
Harris joined. Judge Gregory wrote a dissenting opinion, in
which Senior Judge Davis joined. Judge Wynn wrote a dissenting
opinion. Judge Diaz did not participate in this decision.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.

2
WILKINSON, Circuit Judge:

Deangelo Whiteside pled guilty to a charge of possession

with intent to distribute at least 50 grams of cocaine base,

pursuant to 21 U.S.C. § 841(a)(1). Based upon his criminal

record, he received the career offender enhancement under the

United States Sentencing Guidelines and was sentenced to 210

months imprisonment. Whiteside now raises various claims on a 28

U.S.C. § 2255 petition arguing that his sentence should be

vacated in light of United States v. Simmons, 649 F.3d 237 (4th

Cir. 2011) (en banc). In accordance with the relevant statutes,

and in reliance upon Supreme Court and circuit precedent, we

hold that the filing of the § 2255 petition was untimely, and we

therefore affirm the district court’s dismissal of the petition.

We decline to address the other claims raised by the petitioner.

I.

Starting in 2007, various drug dealers in Asheville, North

Carolina, began identifying Deangelo Marquis Whiteside as a

wholesale crack cocaine distributor in the area. Following an

investigation, Whiteside was charged on July 22, 2009 in the

Western District of North Carolina with one count of possession

with intent to distribute more than 50 grams of cocaine base in

violation of 21 U.S.C. § 841(a)(1). Prior to his plea agreement,

the government notified Whiteside that it intended to pursue an

enhanced penalty under 21 U.S.C. § 851 based on his 2002 North

3
Carolina conviction for possession with intent to manufacture,

sell, or deliver a controlled substance.

The presentence report determined that petitioner was

accountable for 1951.9 net grams of powder cocaine and 468.3 net

grams of cocaine base. Under 21 U.S.C. § 841(b)(1)(A), this

quantity of drugs would have subjected him to a mandatory

minimum of ten years in prison. The report detailed as well

Whiteside’s lengthy criminal record, including numerous

controlled-substances offenses, assault with a deadly weapon on

a government officer, and additional counts of assault, hit and

run, and resisting a public officer, which, independent of any

career offender enhancement, established a criminal history

category of V. See JA at 137. Whiteside did, however, qualify

for the career offender sentencing enhancement under § 4B1.1 of

the United States Sentencing Guidelines based on the 2002

conviction and another 1999 North Carolina conviction for

possession with intent to manufacture, sell, and deliver

cocaine.

The presentence report, accepted by the district court,

recommended an advisory guidelines range of 262 to 327 months

based on the offense conduct, Whiteside’s criminal record, and a

three-level reduction for acceptance of responsibility. The

government made a motion under § 5K1.1 of the Sentencing

Guidelines for a downward departure for substantial assistance,

4
which the court accepted. In light of the motion and after full

consideration of the sentencing factors set forth in 18 U.S.C.

§ 3553(a), the district judge ultimately sentenced Whiteside to

210 months. The court entered judgment on July 20, 2010, and

petitioner did not pursue a direct appeal. His conviction became

final on August 3, 2010, when his time for appeal expired.

On May 18, 2012, petitioner filed a motion under 28 U.S.C.

§ 2255 to vacate his sentence in light of United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). He argued that

the sentence should be vacated because after Simmons his prior

drug offenses would no longer qualify as predicate felony

convictions for purposes of sentencing enhancements, including

the career offender enhancement under § 4B1.1 of the guidelines.

See Appellant’s Br. at 5. Assuming he would again receive a

three-level reduction for acceptance of responsibility and a

substantial assistance downward departure, Whiteside contends

that, if resentenced, he would be subject to a markedly lower

advisory guidelines range. Id. The government responds that the

district court “possessed both the statutory authority and the

discretion to impose the sentence it imposed, and were this case

remanded and [p]etitioner resentenced, the district court could

properly impose the same sentence, even without application of

the career-offender enhancement.” Gov’t Br. at 47.

5
 The threshold issue before this court concerns the

timeliness of Whiteside’s § 2255 petition. The district court

for the Western District of North Carolina denied petitioner’s

motion as untimely and declined to apply equitable tolling. A

divided panel of this court vacated the sentence and remanded

for resentencing, holding that the statutory limitations period

should be equitably tolled and that Whiteside’s claims were

otherwise cognizable on collateral review. See Whiteside v.

United States, 748 F.3d 541 (4th Cir. 2014). A majority of the

active judges in the circuit voted to rehear the case en banc.

See Order Granting Rehearing En Banc of July 10, 2014. We now

hold that the petition is untimely and affirm the district

court’s dismissal of it.

II.

Petitions for collateral relief filed pursuant to 28 U.S.C.

§ 2255 are subject to a one-year statute of limitations governed

by § 2255(f). 1 The statute provides that the one-year clock is

triggered by one of four conditions, whichever occurs latest:

(1) the date on which the judgment of conviction
becomes final;

(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is

1
This discussion is modified and adapted from section II of
the dissent to the panel’s original decision in this case. See
748 F.3d 541, 556 (4th Cir. 2014).

6
 removed, if the movant was prevented from making a
motion by such governmental action;

(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4).

A.

Petitioner contends that his claim falls under

§ 2255(f)(4), and that United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc), qualified as a new “fact” for

purposes of that provision. Whiteside’s suit would be timely

under this theory, since he filed his petition less than a year

after Simmons was handed down.

Whiteside grounds his argument on the Supreme Court’s

decision in Johnson v. United States, 544 U.S. 295 (2005). In

Johnson, the defendant’s sentence in the original proceeding was

enhanced on the basis of two state convictions, one of which was

later vacated. Following vacatur, Johnson sought federal post-

conviction relief, contending that his enhanced sentence was no

longer valid. Johnson’s conviction had become final more than a

year before his § 2255 petition was filed, but the Court

concluded that the vacatur qualified as a new fact for purposes

7
of subsection (f)(4). See Johnson, 544 U.S. at 300-02. As the

Court noted:

We commonly speak of the “fact of a prior conviction,”
and an order vacating a predicate conviction is spoken
of as a fact just as sensibly as the order entering
it. In either case, a claim of such a fact is subject
to proof or disproof like any other factual issue.

Id. at 306-07 (internal citation omitted).

Johnson does not govern Whiteside’s claim. Simmons

represented a change of law, not fact. The circuits to have

considered this type of issue have uniformly reached the same

conclusion. See, e.g., Phillips v. United States, 734 F.3d 573,

580-83 (6th Cir. 2013) (finding the petition untimely where an

intervening change in the law was insufficient to render the

petitioner actually innocent); Lo v. Endicott, 506 F.3d 572, 575

(7th Cir. 2007) (finding that an intervening change in law was

not a new factual predicate sufficient to reset the statute of

limitations period under AEDPA); E.J.R.E. v. United States, 453

F.3d 1094, 1098 (8th Cir. 2006) (rejecting an intervening change

in law as insufficient to reset the statute of limitations

period under AEDPA and declining to equitably toll the statute

of limitations); Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th

Cir. 2005) (same); see also Minter v. Beck, 230 F.3d 663, 666

(4th Cir. 2000) (rejecting, in a similar context, defendant’s

attempt to invoke a change in law as an impediment to filing a

8
habeas petition sufficient to toll AEDPA’s statute of

limitations). 2

Contrary to the vacatur at issue in Johnson, Simmons did

not directly alter Whiteside’s legal status as a prior state

offender. See Lo, 506 F.3d at 575. A conviction is a fact for

sentencing purposes, but a relevant legal rule is not. Simmons,

“unlike a predicate conviction, is a ruling exclusively within

the domain of the courts and is incapable of being proved or

disproved.” E.J.R.E., 453 F.3d at 1098. This point is

illustrated by the simple observation that “[w]e would never

. . . ask a jury to decide whether a judicial decision had

indeed changed [the] law in the relevant way, nor would the

parties introduce evidence on the question.” Shannon, 410 F.3d

at 1089. Indeed, if this change in law is a “fact,” then what

would not be?

Instead of altering the factual landscape, Simmons

announced a generally applicable legal rule. A decision

“establishing an abstract proposition of law arguably helpful to

the petitioner’s claim does not constitute the ‘factual

predicate’ for that claim.” Id. Decisions that change the legal

significance of certain facts without modifying them do not

2
The statute of limitations provisions in AEDPA under 28
U.S.C. § 2244(d)(1)(A)-(D) and 28 U.S.C. § 2255(f)(1)-(4) are in
all material respects identical.

9
qualify under (f)(4). Simmons did precisely this: unlike a

vacatur decision, it altered the legal significance of

Whiteside’s prior convictions without amending the convictions

themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)

(“Time begins when the prisoner knows (or through diligence

could discover) the important facts, not when the prisoner

recognizes their legal significance.”); see also United States

v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).

Whiteside’s (f)(4) argument fails for the additional reason

that it would effectively nullify (f)(3), which provides for

tolling in instances where the defendant’s claim is founded on a

right “newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” 28

U.S.C. § 2255(f)(3). As the Eighth Circuit has reasoned:

[The specific criteria enumerated in (f)(3) for
tolling the limitations period] impliedly reject[] the
notion that the creation of a new right by the Supreme
Court that is not made retroactive to cases on
collateral review, other rulings of law by the Supreme
Court, and decisions taken from the courts of appeal
in all instances, could trigger any of the limitations
periods enumerated under § 2255.

E.J.R.E., 453 F.3d at 1098.

If changes in law are cognizable under (f)(4), then (f)(3)

becomes superfluous because any claim brought under (f)(3) could

also be brought under (f)(4). See Lo, 506 F.3d at 575. “To

suggest, as [the petitioner] does, that any decision by any

10
court on any issue could constitute a ‘factual predicate’ would

swallow up the specifically delineated limitations in” (f)(3).

Id. at 576. These considerations indicate that “subsequent

interpretations of the law can be the basis of delay in filing a

§ 2255 motion only in accordance with § 2255(f)(3)” -- not

(f)(4). Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th

Cir. 2011) (en banc) (internal quotation marks omitted). In

other words, Whiteside’s view would render the statute of

limitations virtually without limits. Notably, Whiteside does

not even attempt to argue that his claim satisfies the

requirements specified in (f)(3).

B.

Whiteside asserts in the alternative that if we reject his

statutory argument, the statute of limitations should be

equitably tolled. Equitable tolling of petitions for collateral

review is available only when a defendant demonstrates “(1) that

he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation marks omitted). Under this court’s precedent,

equitable tolling is appropriate in those “rare instances where

-- due to circumstances external to the party’s own conduct --

it would be unconscionable to enforce the limitation period

against the party and gross injustice would result.” Rouse v.

11
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris

v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)) (internal

quotation marks omitted); see also United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004).

Whiteside claims that he was prevented from timely filing

by the unfavorable precedent that would have governed his claim

had he sued prior to Simmons. The standard announced in

Holland, however, focuses not on whether unfavorable precedent

would have rendered a timely claim futile, but on whether a

factor beyond the defendant’s control prevented him from filing

within the limitations period at all. See Shannon, 410 F.3d at

1090. Although Simmons plainly made a collateral attack on

Whiteside’s sentence more plausible, nothing prevented Whiteside

from filing his petition within the one-year statute of

limitations. See E.J.R.E., 453 F.3d at 1098.

The Supreme Court has made clear that alleged futility

cannot serve as “cause” for a procedural default in the context

of collateral review. As the Court emphasized in Bousley v.

United States, “futility cannot constitute cause if it means

simply that a claim was unacceptable to that particular court at

that particular time.” 523 U.S. 614, 623 (1998) (quoting Engle

v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (internal quotation

marks omitted). Every case “presents a myriad of possible

claims.” Engle, 456 U.S. at 133. The demands of finality oblige

12
a petitioner to raise those claims that might possibly have

merit even where “he thinks [the court] will be unsympathetic to

the claim;” otherwise the claim is considered procedurally

defaulted. Id. at 130. It would be anomalous to contend that

futility -- something the Supreme Court has clearly said cannot

serve as cause for procedural default – does nonetheless serve

as cause for failure to timely file a § 2255 petition. For the

law of procedural default and that of equitable tolling address

the same basic question of when failures to raise claims are to

be deemed excusable.

This court’s decision in Minter v. Beck confirms this line

of reasoning. 230 F.3d 663 (4th Cir. 2000). In that case, as

here, the defendant’s claim originally seemed foreclosed by

extant precedent. After the issuance of a favorable decision,

Minter sought to collaterally attack his sentence, invoking a

provision equivalent to § 2255(f)(2). He contended that the

newly issued decision, by nullifying the unfavorable precedent

that had previously barred his claim, served to remove an

“impediment” to filing. After rejecting this argument, we held

that equitable tolling was inappropriate. Minter, 230 F.3d at

666-67. We reasoned that unfavorable precedent may have rendered

a timely claim unsuccessful but did not operate to bar Minter

from making the attempt. This court echoed the Supreme Court in

13
saying that “futility . . . is not a valid justification for

filing an untimely” petition. Id. at 666.

Nothing in Holland undermines these holdings. Though the

Court there cautioned against a “too rigid” approach to

equitable tolling, it nonetheless made clear that federal courts

were to invoke the doctrine only in cases of truly

“extraordinary circumstances.” Holland, 560 U.S. at 634, 649. In

that case, petitioner was the victim of extraordinary negligence

by his attorney, who not only failed to file his federal habeas

petition in a timely fashion, but also failed to communicate

with petitioner, failed to inform him that the Florida Supreme

Court had decided his case, and ignored his many letters

repeatedly emphasizing the importance of preserving his claims

for federal review. Id. at 652. Furthermore, the Florida courts

repeatedly denied petitioner’s attempts to file pro se or have

his attorney removed for this record of ineptitude. Id. at 653.

But those facts are far afield from the case at bar, which

involves unimpeded access to federal court for claims brought

there all the time.

Tellingly, Whiteside makes no allegation that he was unable

to file in a timely fashion -- only that doing so would probably

have been unsuccessful in light of extant case law. But that

allegation is manifestly insubstantial given the many defendants

who filed suits prior to Simmons asserting the exact same

14
substantive claim that Whiteside now raises, including, of

course, Simmons himself. See, e.g., United States v. Brandon,

376 F. App’x 343 (4th Cir. 2010) (per curiam) (unpublished);

United States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (per

curiam) (unpublished); United States v. Simmons, 340 F. App’x

141 (4th Cir. 2009) (per curiam) (unpublished), vacated, 130 S.

Ct. 3455 (2010). These claims were not entirely meritless even

under then-existing precedent: the Supreme Court’s decision in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth

Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th

Cir. 2008), strongly foreshadowed Simmons. Equitable tolling

thus may not be applied where, as here, the only impediment to

timely filing was the discouragement felt by petitioner when

calculating his odds of success.

III.

Whiteside insists, however, that the disparity in circuit

law between then and now justifies setting aside the limitations

period. That contention, however, overlooks the open-ended

nature of his equitable tolling arguments. Roughly 80,000

persons are sentenced by federal district courts each year, and

“[p]recedential decisions come pouring out of the federal courts

of appeal and the Supreme Court” routinely. Hawkins v. United

States, 706 F.3d 820, 824 (7th Cir. 2013). If every favorable

precedential decision could become, as Whiteside would have it,

15
“a ticket to being resentenced,” id., the criminal justice

system would need to “continually . . . marshal resources in

order to keep in prison defendants whose trials and appeals [and

sentences] conformed to then-existing constitutional [and

statutory] standards.” Id. (quoting Teague v. Lane, 489 U.S.

288, 310 (1989) (plurality opinion)) (internal quotations

omitted) (brackets in original).

In other words, if we accepted Whiteside’s view, we would

be on the way to holding that a myriad of substantive changes in

law past the point of finality would suffice to equitably toll

the statute of limitations in § 2255(f) whenever it might be

conjectured that past and future outcomes would be different.

The implications of any such argument foreshadow a tectonic

shift of resources from trial and direct appeal to repetitive

rounds of collateral review. While resentencing is generally not

as significant an encumbrance as a retrial, “the cumulative

burden of resentencing in a great many stale cases could be

considerable.” Id. That, of course, is the precise prospect a

statute of limitations is enacted to prevent. As several

circuits have noted, it is quite improper to use the doctrine of

equitable tolling to circumvent the express limitations

contained in § 2255. See, e.g., Lo, 506 F.3d at 576. A step of

this magnitude would require either an act of Congress or a

16
ruling from the Supreme Court, neither of which has come to

pass.

Whiteside’s conviction became final on August 3, 2010. At

the time, he was sentenced under the sentencing scheme outlined

in United States v. Harp. See 406 F.3d 242 (4th Cir. 2005). On

August 17, 2011, the court, sitting en banc, reversed the panel

decision in Simmons, expressly overruling Harp and this court’s

treatment of predicate convictions for career offender

enhancements. See Simmons, 649 F.3d 237. Whiteside did not file

his motion to vacate his sentence in light of Simmons until May

18, 2012, almost two years after his conviction became final.

But the relevant limitations period under § 2255(f) is one year

after the conviction is final, not one year from a decision that

effectuates a change in circuit law.

To appreciate the point, suppose three, five, or ten years

had passed between a conviction becoming final and the time when

some change in circuit law occurred. If we were to adopt

Whiteside’s argument, whenever there is a change in circuit law

of sufficient magnitude (whatever that is), a petitioner would

have a year to file after the change, even if many years had

passed since the conviction became final. That simply vitiates

the point of statutes of limitations in general and this one in

particular, namely that the relevant evidence not be stale or

missing. Even changes in law must be applied to facts, and

17
statutes of limitation reduce the risk of claims being less

accurately litigated long after the fact.

It bears briefly summarizing just how much Whiteside would

trench upon the prerogatives of other institutions to find

equitable tolling in these circumstances. Petitioner would

circumvent Congress’s highly refined statute of limitations,

which specifically sets forth in § 2255(f)(3) when tolling would

lie as a result of a change in law, a criterion which petitioner

has manifestly failed to satisfy. Petitioner would further have

us disregard the Supreme Court’s pointed language in Bousley and

Engle and its historic limitation of equitable tolling to

extraordinary circumstances beyond a petitioner’s control. See

Holland v. Florida, 560 U.S. 631 (2010). In disregarding the

prerogatives of other institutions, we would invite additional

collateral attacks long after convictions were final and

whenever a change in law of arguable import might appear. Every

statute of limitations contemplates by definition the

possibility that some favorable development after the

limitations period might occur. The legislative branch of our

government is entrusted to set the balance between the ends of

equity and the values safeguarded by according final judgments

due effect. It is not our office to reset or recalibrate that

balance in the case at bar. The judgment of the district court

18
must accordingly be affirmed because the petition herein was not

timely filed. 3

AFFIRMED

3
The court wishes to express its appreciation both to Ann
Hester and Amy Ray for the fine quality of their advocacy in
this case.

19
GREGORY, Circuit Judge, dissenting, with whom DAVIS, Senior
Circuit Judge, joins:

The majority today makes a choice. It has chosen not to

exercise its powers in equity – which the Supreme Court recently

affirmed – and to allow a gross injustice to be committed

against Deangelo Whiteside. Nobody disputes that Whiteside has

been erroneously designated a career offender. Still, the

majority insists that he cannot challenge this mistake. As a

result of our decision, Whiteside faces at least eight more

years in prison. It is simply unjust to deny someone the

opportunity to receive a properly calculated sentence. I must

dissent.

Make no mistake that we possess the power to grant

Whiteside the equitable relief he seeks and, indeed, to which he

is entitled. The Supreme Court specifically addressed our

ability to do so a few years ago in Holland v. Florida, when it

reaffirmed a “presumption in favor” of equitably tolling AEDPA’s

statute of limitations. 560 U.S. 631, 646 (2010) (emphasis in

original) (internal quotation marks omitted). “In the case of

AEDPA,” wrote the Court, “the presumption’s strength is

reinforced by the fact that ‘equitable principles’ have

traditionally ‘governed’ the substantive law of habeas corpus

. . . .” Id. (quoting Munaf v. Geren, 553 U.S. 674, 693

(2008)). While noting AEDPA’s basic purpose of eliminating
delays, the Court clarified that the statute was never meant to

displace “prior law, under which a petition’s timeliness was

always determined under equitable principles.” Id. at 648. The

Court was extraordinarily clear: AEDPA’s statute of limitations

“does not set forth ‘an inflexible rule requiring dismissal

whenever’ its ‘clock has run.’” Id. at 645 (quoting Day v.

McDonough, 547 U.S. 198, 208 (2006)).

The Court in Holland specifically rejected the majority’s

approach to equitable tolling in two ways. First, it made clear

that courts must be flexible and exercise their equitable powers

on a case-by-case basis instead of blindly following “mechanical

rules.” Id. at 650 (quoting Holmberg v. Armbrecht, 327 U.S.

392, 396 (1946)). Second, a court is not inexorably bound to

follow past precedent when doing so would prevent it from

“‘accord[ing] all the relief necessary to correct . . .

particular injustices.’” Id. (quoting Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 248 (1944)). Instead, we

should “follow[] a tradition in which courts of equity have

sought to ‘relieve hardships which, from time to time, arise

from a hard and fast adherence’ to more absolute legal rules,

which, if strictly applied, threaten the ‘evils of archaic

rigidity.’” Id. (quoting Hazel-Atlas, 322 U.S. at 248).

Despite this, the majority does exactly what Holland warns

against by applying a rigid rule that results in gross

21
injustice. It was our own mistake that resulted in Whiteside’s

classification as a career offender, which we finally corrected

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc). By that point, however, Whiteside had already been

sentenced under a regime that wrongly turned a blind eye to the

particular circumstances of a defendant’s predicate convictions.

The career offender enhancement – for which nobody disputes

Whiteside is now legally ineligible – increased his Sentencing

Guidelines range from 140-175 months to 262-327 months. After a

government-requested downward departure, he was sentenced to 210

months. Had Whiteside received an identical downward departure

without the enhancement, he would have received a sentence of

112 months. This difference of more than eight years presents

precisely the kind of “situation[] [that] demand[s] equitable

intervention . . . to correct . . . [a] particular injustice[.]”

Holland, 560 U.S. at 650 (quoting Hazel-Atlas, 322 U.S. at 248).

Rather than heed the Supreme Court, the majority

constructs for itself and then hides behind false barriers to

doing what is right. I of course recognize that we have

previously found that the futility of a petitioner’s claim does

not constitute a circumstance external to his control justifying

an untimely section 2254 petition. Minter v. Beck, 230 F.3d

663, 666 (4th Cir. 2000). However, the majority places too much

reliance on Minter given the Supreme Court’s later Holland

22
decision. 1 Indeed, in concluding that Whiteside’s claim should

be barred, the majority primarily relies upon cases decided

prior to Holland. See, e.g., Bousley v. United States, 523 U.S.

614 (1998); Engle v. Isaac, 456 U.S. 107 (1982). Certainly the

Supreme Court was aware of its own precedent, yet still chose to

empower courts to exercise discretion when faced with individual

circumstances that might “warrant special treatment.” Holland,

560 U.S. at 650. Although the majority correctly observes that

“[n]othing in Holland undermines the[] holdings” in Bousley and

Engle, Maj. Op. at 14, it is also true that nothing in Holland

prohibits this Court, despite Bousley and Engle, from

nonetheless doing justice through the exercise of its equitable

powers.

The majority furthermore attempts to justify its position

by contending that equitable tolling of Whiteside’s claim would

thwart the supposedly holy principle of finality, as well as

“trench upon the prerogatives of other institutions.” Maj. Op.

at 18. This is simply untrue. Just this year, pursuant to its

Congressional mandate, the United States Sentencing Commission

1
I find it glaringly inconsistent of the majority to warn
against “invit[ing] additional collateral attacks,” Maj. Op. at
18-19, while simultaneously penalizing Whiteside for not
bringing a meritless petition in the time before Simmons was
decided, see Maj. Op. at 12 (“[N]othing prevented Whiteside from
filing his petition within the one-year statute of
limitations.”).

23
issued retroactive amendments to the Guidelines that will reduce

the base offense level for certain drug offenses by two. See

Sentencing Guidelines for United States Courts, 79 Fed. Reg.

25,996, 26,004 (proposed May 6, 2014). The Commission projects

over 46,000 offenders will be eligible for resentencing, though

not career offenders like Whiteside. 2 This development – which

only takes effect with the approval of Congress – exposes the

majority’s hyperbolic tendencies. Although the majority accuses

equitable tolling of portending “a tectonic shift of resources,”

Maj. Op. at 16-17, apparently our legislative branch disagrees.

When it comes to “the values safeguarded by according final

judgments due effect,” Maj. Op. at 19, I concur with Congress

that finality gives way to fairness. And the 2014 Guidelines

amendments do not mark the first time our government has found

it necessary to take steps towards reducing the draconian

effects of our sentencing laws. In 2010, after realizing that

over eighty percent of crack cocaine defendants were African

Americans, Congress took action to correct what had developed as

a discriminatory sentencing scheme by passing the Fair

Sentencing Act. See United States v. Blewett, 746 F.3d 647, 667

(6th Cir. 2013) (en banc) (Moore, J., concurring) (noting that

2
See News Release, U.S. Sentencing Comm’n, U.S. Sentencing
Commission Unanimously Votes to Allow Delayed Retroactive
Reduction in Drug Trafficking Sentences (July 18, 2014);
U.S.S.G. § 1B1.10(a)(2)(A).

24
prior to the Act, “the average federal drug sentence for African

Americans was forty-nine percent longer than the average federal

drug sentence for Caucasians”). It has also been more than one

year since our executive branch declined to enforce mandatory-

minimum penalties for low-level drug offenses, which, according

to our Attorney General, disproportionately affect communities

of color. 3

My point is that the statistical deck was stacked against

Deangelo Whiteside from the beginning. Then, our mistake in

casting him a career offender relegated him to an even longer

term of imprisonment. In the face of this mistake, it is ironic

that our branch of government is the one dragging its feet on

the road towards equal justice under the law. Rather than take

the slightest step in defense of a citizen’s liberty, we throw

up our hands and say, “too little, too late.” And for what

reason? To avoid the chaos that would befall society if

3
See Eric Holder, U.S. Attorney General, Remarks at the
Annual Meeting of the American Bar Association’s House of
Delegates (Aug. 12, 2013) (“We also must confront the reality
that – once they’re in the system – people of color often face
harsher punishments than their peers . . . . This isn’t just
unacceptable – it is shameful.”). Recently, the Justice
Department also expressed its confidence in a robust habeas
process by announcing a new policy that it will no longer ask
criminal defendants who plead guilty to waive the right to bring
future claims of ineffective assistance of counsel. See Press
Release, U.S. Dep’t of Justice, Attorney General Holder
Announces New Policy to Enhance Justice Department’s Commitment
to Support Defendants’ Right to Counsel (Oct. 14, 2014).

25
criminals were imprisoned according to a correct understanding

of the law?

I dissent.

26
WYNN, Circuit Judge, dissenting:

The majority opinion will, without a doubt, “drive citizens

to rub[] their eyes and scratch[] their heads.” United States

v. Foster, 674 F.3d 391, 395 (4th Cir. 2012) (Wilkinson, J.,

concurring in denial of rehearing en banc). “If one were to

inquire of an objectively reasonable person on the street

whether” a court should allow the correction of a sentencing

mistake caused solely by its own error—an error that will likely

cost a man eight years of freedom—no doubt the citizen’s

“response would be ‘Of course. Why do you ask?’” Id.

Habeas corpus allows courts “‘to cut through barriers of

form and procedural mazes’” to effectuate the writ’s ultimate

purpose: safeguarding individual freedom against lawless state

action and ensuring “that miscarriages of justice . . . are

surfaced and corrected.’” Hensley v. Mun. Court, San Jose

Milpitas Judicial Dist., Santa Clara Cnty., Cal., 411 U.S. 345,

350 (1973) (quoting Harris v. Nelson, 394 U.S. 286, 291 (1969)).

Not surprisingly, then, the Supreme Court has repeatedly

affirmed that “‘the principles of comity and finality

informing’” procedural restrictions on habeas corpus proceedings

“‘must yield to the imperative of correcting a fundamentally

unjust’” punishment. Schlup v. Delo, 513 U.S. 298, 320–21

(1995) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).

And by eschewing “mechanical rules” that prevent courts from
according “the relief necessary to correct . . . particular

injustices,” the Supreme Court recently made plain that there

exists a “presumption in favor” of equitably tolling statutes of

limitations to habeas corpus petitions. Holland v. Florida, 560

U.S. 631, 646 (2010) (internal quotation marks and citation

omitted).

This is a case that demands a yielding of “mechanical

rules” in favor of “the relief necessary to correct” a mistake

of our own making. Id. Deangelo Whiteside was sentenced as a

career criminal in July 2010. In August 2011, with United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), this

Court corrected its misinterpretation of law that had led courts

in this Circuit to ignore the particular circumstances of

defendants’ predicate convictions for sentencing purposes.

Undisputedly, in light of Simmons, Whiteside was no career

criminal, and his enhanced “career criminal” sentence was

premised on this Court’s erroneous interpretation of the law.

Accordingly, in May 2012, Whiteside petitioned the district

court to vacate his sentence. But because more than a year had

passed since his sentencing, Whiteside’s petition was deemed

tardy. Today, this Court refuses to set aside that formalistic

time bar in the name of equity.

Strikingly, neither the law nor the facts of this case have

changed. All that has changed is our interpretation of the law.

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In other words, we either forgot that “it’s our job to call

balls and strikes”—or we simply got the call dead wrong.

Confirmation Hearing on the Nomination of John G. Roberts, Jr.

to Be Chief Justice of the United States: Hearing Before the S.

Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of

Judge John G. Roberts, Jr.). Regardless of whether this Court’s

error was grounded in judicial activism or an honest mistake, it

certainly was not Deangelo Whiteside’s fault—yet today the

majority comes to the stunning conclusion that he must pay the

price. 1

Further, the other interests at stake here eclipse our

interest in finality. Indeed, “if finality were our only or

even the more important institutional goal, we would not permit

any postconviction relief at all.” Hawkins v. United States,

724 F.3d 915, 923 (7th Cir. 2013) (Rovner, J., dissenting from

denial of rehearing). It is not finality, but rather “fairness

[that] is the lifeblood of our system of justice,” and “justice

requires the ability to rectify substantial uncontroverted

1
The majority opinion spills considerable ink explaining
why the judiciary should not bear the burden of its own mistake.
Those who were wrongly (over-)sentenced will surely sleep easier
knowing that the courts are not being overworked by too many
“tickets to being resentenced.” Ante at 16. The prison staff
that must look after wrongly-imprisoned defendants—not to
mention the taxpayers who foot the hefty bill for their
(wrongful) incarceration—might, however, take issue with the
majority’s calculus.

29
judicial errors that cause significant injury. This is why in

our anthropomorphization of Justice, she is wearing a blindfold,

and not running shoes.” Id. Denying relief for the sake of

finality is particularly nonsensical where, as here, the issue

is a purely legal one with no evidentiary or spoilation

problems, the sentence is federal and thus skirts comity

concerns, the financial cost of incarcerating Whiteside for

years he should not spend in jail is surely enormous, and the

work associated with correcting Whiteside’s sentence—something

perhaps not even necessitating a formal resentencing hearing,

see, e.g., United States v. Hadden, 475 F.3d 652, 669 (4th Cir.

2007)—is likely minimal. 2

“Even appellate judges are endowed with brains in the hope

and expectation that they will be used to obvious purpose.”

Foster, 674 F.3d at 394 (Wilkinson, J., concurring in denial of

rehearing en banc). If rectifying a mistake of our own

creation—one that will cost a man eight years of his freedom—

2
The district court did not err in applying pre-Simmons
case law and sentencing Whiteside as it did. The error was ours
and ours alone. To the extent the majority’s decision to deny
habeas relief stems from its reluctance to reverse the district
court’s dutiful application of Fourth Circuit precedent, the
majority’s decision is misguided. When an individual’s liberty
is at stake, I have every confidence that our district court
colleagues understand that our role as an appellate court is to
correct legal errors, including our own.

30
does not constitute an “obvious purpose,” I do not know what

does. Respectfully, I dissent.

31