Deangelo Whiteside v. US
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cr-00069-MR-1,1:12-cv-00118-MR. [999331867]. [13-7152]
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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:
January 29, 2014
Decided:
April 8, 2014
Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded for resentencing by published opinion.
Judge Gregory wrote the majority opinion, in which Senior Judge
Davis joined.
Senior Judge Davis wrote a separate concurring
opinion, and Judge Wilkinson wrote a dissenting opinion.
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.
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GREGORY, Circuit Judge:
This case presents the question of whether a federal inmate
may use a 28 U.S.C. § 2255 motion to challenge a sentence that
was based on the career offender enhancement under the United
States Sentencing Guidelines when subsequent case law reveals
the enhancement to be inapplicable to him.
We find that he may,
and in doing so hold that the mistake results in a fundamental
miscarriage of justice that is cognizable on collateral review.
For
the
reasons
stated
below,
we
grant
a
certificate
of
appealability, vacate the petitioner’s sentence, and remand the
case for resentencing.
I.
The facts relevant to this appeal are brief and largely
undisputed.
In July 2009, the petitioner-appellant, Deangelo
Whiteside, was indicted on charges of possession with intent to
distribute at least 50 grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1).
Shortly thereafter, the government filed
an Information pursuant to 21 U.S.C. § 851 notifying Whiteside
that it intended to seek an enhanced penalty based on a 2002
North Carolina felony drug conviction.
Whiteside
government.
then
The
entered
agreement
into
a
plea
acknowledged
agreement
the
with
possibility
the
that
Whiteside might be designated a career offender under U.S.S.G.
2
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§ 4B1.1.
It
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also
contained
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several
waivers
of
Whiteside’s
rights to challenge his conviction and sentence in an appeal or
collateral proceeding.
As discussed in more detail below, the
parties dispute whether these provisions bar Whiteside’s current
claim.
Whiteside pled guilty to the offense in October 2009 and
the probation office began preparing a presentence report.
The
probation officer concluded that Whiteside was responsible for
1,951.9
grams
of
powder
cocaine
and
468.3
grams
cocaine, generating a base offense level of 32. 1
of
crack
The probation
officer also determined that a 1999 North Carolina conviction
for felony possession with intent to sell and deliver cocaine,
along with the 2002 drug conviction, qualified Whiteside for the
career
offender
enhancement
under
§ 4B1.1. 2
The
enhancement
1
The probation officer disagreed with the government’s
stipulation in the plea agreement that Whiteside would be held
responsible for more than 50 and less than 150 grams of crack
cocaine.
2
The career offender enhancement defines a “career
offender,” and provides that a defendant is such an offender if
(1) [he] was at least eighteen years old at the time
[he] committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and (3) [he] has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(a). For purposes of the enhancement, a “prior
felony conviction” includes “a prior . . . state conviction for
(Continued)
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raised Whiteside’s base offense level to 37 and his criminal
history category from V to VI.
for
acceptance
of
After a three-level reduction
responsibility,
Whiteside’s
Sentencing
Guidelines range was 262 to 327 months in prison.
the
government’s
§ 851
Information,
the
prior
In light of
felony
drug
convictions also subjected Whiteside to a mandatory minimum term
of imprisonment of twenty years.
Prior
to
Whiteside’s
sentencing
hearing,
the
government
filed a § 5K1.1 motion seeking a downward departure based on the
petitioner’s substantial assistance.
The government recommended
that Whiteside receive a sentence based on a total offense level
of 32 and a criminal history category VI, which yielded a 210 to
262
month
Guidelines
range.
The
district
court
granted
the
government’s motion and, on July 9, 2010, sentenced Whiteside to
210 months’ imprisonment, a sentence below both his Guidelines
range and the twenty-year mandatory minimum.
On August 17, 2011, this Court issued its en banc decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).
In
Simmons, we overruled circuit precedent and held that a North
Carolina
conviction
is
a
crime
punishable
by
a
term
of
an offense punishable by . . . imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony.” Id. § 4B1.2 cmt. n.1.
4
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imprisonment
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exceeding
one
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year
only
when
the
defendant’s
particular criminal history and the nature of his offense so
warrant.
See id. at 247 & n.9.
It is undisputed that under
Simmons, Whiteside’s predicate convictions were not punishable
by more than a year in prison, and were he sentenced today he
would not be subject to either the career offender enhancement
or the twenty-year statutory minimum penalty.
Whiteside argues that without those enhancements he would
have
faced
a
Guidelines
range
of
statutory term of ten years to life.
140
to
175
months
and
a
Assuming the same downward
departure based on substantial assistance – eighty percent of
the low end of the Guidelines – Whiteside contends that his
sentence would have been 112 months, roughly eight years shorter
than the sentence he received.
On May 18, 2012, Whiteside filed a 28 U.S.C. § 2255 motion
to vacate his sentence.
He argued that, in light of Simmons, he
did not qualify as a career offender and that he should be
resentenced
without
the
enhancement. 3
The
district
court
dismissed Whiteside’s motion to vacate, concluding that it was
untimely, that Whiteside waived his right to collaterally attack
3
Whiteside subsequently filed a supplement to his motion to
vacate, making the same arguments, but seeking, in the
alternative, relief under 28 U.S.C. § 2241, a writ of coram
nobis, and a writ of audita querela.
5
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his sentence in his plea agreement, and that he was not eligible
for
post-conviction
relief
because
beneath the statutory maximum.
he
received
a
sentence
The district court also declined
to issue a certificate of appealability.
This appeal followed.
II.
A.
We must first address whether Whiteside’s motion to vacate
is procedurally barred.
whether
Whiteside
in
his
The first question on this point is
plea
agreement
collaterally attack his sentence.
See
United
States
v.
Copeland,
waived
his
right
to
We review this issue de novo.
707
F.3d
522,
528
(4th
Cir.
2013).
The relevant portions of Whiteside’s plea agreement are as
follows:
20.
Defendant, in exchange for the concessions made
by the United States in this plea agreement,
waives all such rights to contest the conviction
except for: (1) claims of ineffective assistance
of counsel or (2) prosecutorial misconduct.
Defendant also . . . knowingly and expressly
waives all rights conferred by 18 U.S.C. § 3742
or otherwise to appeal whatever sentence is
imposed with the two exceptions set forth above.
Defendant also reserves right to appeal ruling as
to career offender pursuant to USSG § 4Bl.l.
21.
Also, in exchange for the concessions made by the
United States, defendant agrees that the United
States preserves all its rights and duties with
respect to appeal as set forth in 18 U.S.C.
§ 3742(b), while the defendant waives all rights
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to appeal or collaterally attack the sentence of
conviction with the two exceptions set forth
above.
The government contends that under these terms, Whiteside
waived
his
grounds
right
except
to
that
prosecutorial
collaterally
of
attack
ineffective
misconduct.
We
his
sentence
assistance
disagree,
of
on
counsel
finding
that
all
or
the
language of the plea agreement is ambiguous and does not clearly
specify which rights were waived.
In
another.
short,
the
paragraphs
quoted
above
contradict
one
Paragraph 20 states that the defendant may challenge
his conviction only on the two grounds just mentioned.
It goes
on to state that the defendant retains his right to appeal his
sentence
with
respect
to
the
career
offender
enhancement.
However, paragraph 21 then states that he may only challenge his
sentence (through either a direct appeal or § 2255 motion) on
ineffective
assistance
or
prosecutorial
This simply does not make sense.
misconduct
grounds.
Either the parties intended to
limit the defendant’s right to challenge his sentence to two
grounds,
a
result
reference
at
statement
in
the
which
end
paragraph
would
of
21
render
paragraph
limiting
20
the
career
superfluous,
Whiteside’s
offender
or
rights
the
to
challenge his sentence to two grounds was a mistake and should
instead have cited three possible bases for a challenge.
Either
reading is problematic, leaving it impossible to say exactly
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which
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rights
unclear,
it
Whiteside
must
be
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waived.
When
construed
against
a
plea
the
agreement
government.
is
See
United States v. Jordan, 509 F.3d 191, 199-200 (4th Cir. 2007).
As such, we hold that Whiteside did not waive his right to
challenge
the
career
offender
enhancement
in
a
collateral
proceeding.
B.
We next consider whether Whiteside’s motion to vacate was
timely.
A § 2255 petitioner ordinarily has one year from the
date on which his conviction becomes final in order to file a
motion
to
vacate.
28
U.S.C.
§ 2255(f(1).
Whiteside’s
conviction became final on August 17, 2010, but he did not file
his motion until May 18, 2012, well beyond the one-year period.
However,
equitably
the
statute
tolled
in
of
limitations
certain
in
§ 2255(f)(1)
circumstances.
may
be
Specifically,
equitable tolling applies if the petitioner can show “‘(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary
circumstance
timely filing.”
stood
in
his
way’
and
prevented
Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Relief
is limited to cases “where – due to circumstances external to
the party’s own conduct – it would be unconscionable to enforce
the
limitation
period
against
the
8
party
and
gross
injustice
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would result.”
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United States v. Sosa, 364 F.3d 507, 512 (4th
Cir. 2004).
As explained below, we find that the erroneous application
of the career offender enhancement worked a gross miscarriage of
justice.
We
also
hold
that
Whiteside
pursued
his
rights
diligently by filing his motion within a year of our decision in
Simmons and that extraordinary circumstances prevented him from
filing the motion earlier.
Our decision is based on the simple
fact that our case law prior to Simmons absolutely foreclosed
Whiteside’s current argument.
In United States v. Jones, 195
F.3d 205 (4th Cir. 1999), and then again in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), we rejected the arguments
that we later accepted in Simmons.
Had Whiteside filed a habeas
petition prior to Simmons it would have been summarily denied on
the basis of these decisions, as was the case for numerous other
petitioners.
See, e.g., Robinson v. United States, No. 5:07-cv-
140, 2011 WL 676184 (E.D.N.C. Feb. 18, 2011); Jordan v. United
States,
No.
1:09-cv-816,
2010
WL
2347076
(M.D.N.C.
June
3,
2010).
We think this condition – the complete lack of any
chance at success – constitutes an “extraordinary circumstance”
that
warrants
equitable
considerations.
The
obstacle
was
clearly external to Whiteside – indeed, it was our incorrect
interpretation of which North Carolina convictions support the
career
offender
enhancement
that
9
prevented
him
from
seeking
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relief.
Once
opportunity
for
timely manner.
on
his
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rights
instead,
once
this
was
meaningful
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corrected
review,
and
he
Whiteside
filed
his
had
motion
an
in
a
This is not a case of a petitioner who has slept
and
later
Whiteside’s
seeks
right
relief
to
from
review
his
obtained
indolence;
any
real
significance, he acted.
The government nevertheless contends that Whiteside should
have filed his petition prior to Simmons in spite of its sure
defeat.
In addition to simply having an air of absurdity about
it, this argument would lead to the perverse result of reading
the AEDPA’s time limitations to encourage inmates to flood the
courts with baseless petitions on the off chance that the law
might
one
day
change.
Further,
if
Whiteside
had
filed
his
petition prior to Simmons and it had been denied, his current
claim would possibly be barred as a successive petition.
§ 2255(h). 4
See
Given the timing of Whiteside’s conviction and our
decision in Simmons, the result of the government’s position is
that at no point would Whiteside have been entitled to relief
4
We expressly do not decide whether the savings clause in
§ 2255(e) might justify relief from a Simmons sentencing error
through the filing of a § 2241 petition.
While we have not
previously “extended the reach of the savings clause to those
petitioners challenging only their sentence,” United States v.
Poole, 531 F.3d 263, 267 n.7, 274 (4th Cir. 2008), we note that
the Eleventh Circuit recently permitted a federal inmate to use
§ 2255(e) to bring a § 2241 petition challenging the legality of
his sentence. Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013).
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from an error that we consider to be a fundamental miscarriage
of justice.
We cannot accept such an outcome.
Nor are we bound to.
We recognize that we previously held
that the futility of a petitioner’s claim does not constitute a
circumstance external to his control.
663,
666
(4th
Cir.
2000).
Minter v. Beck, 230 F.3d
However,
our
decision
in
Minter
preceded the recent Supreme Court decision in Holland, which
adopted an expansive reading of the role of equity in habeas
cases.
In
Holland,
the
Supreme
Court
reviewed
an
Eleventh
Circuit rule holding that attorney negligence in failing to meet
a
filing
deadline
may
never
serve
as
a
basis
for
equitable
tolling absent a showing of bad faith or dishonesty on the part
of the attorney.
as overly rigid.
560 U.S. at 644.
The Court rejected this rule
Noting equity’s longstanding role in habeas
relief, the Court stated that principles of equitable tolling
are consistent with the “AEDPA’s basic purpose of eliminating
delays . . . without undermining basic habeas corpus principles
and by harmonizing the statute with prior law, under which a
petition’s
timeliness
principles.”
the AEDPA’s
inflexible
run.’”
(2010)).
was
Id. at 648.
statutes
rule
of
requiring
always
determined
under
equitable
In light of this, the Court held that
limitations
dismissal
“do[]
not
whenever’
set
its
forth
‘an
‘clock
has
Id. at 645 (quoting Day v. McDonough, 547 U.S. 198, 205
The
Court
further
explained
11
that,
while
courts
of
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equity are of course governed by “rules and precedents,” equity
also
requires
rules.”
“flexibility”
and
the
avoidance
of
“mechanical
Id. at 649-50 (internal quotation marks and citations
omitted); see also id. at 650 (courts must “exercise judgment in
light of prior precedent, but with awareness of the fact that
specific circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case”).
Although Holland dealt with attorney misconduct, an issue
not before this Court, the decision’s broader point was that the
“exercise of a court’s equity powers . . . must be made on a
case-by-case basis . . . .”
United
States,
Holland
petition
and
689
F.3d
applying
within
three
Id. at 649-50; see also Jones v.
621,
626-28
(6th
Cir.
2012)
equitable
tolling
where
months
Supreme
Court’s
of
inmate
(citing
filed
decision
in
Begay v. United States, 553 U.S. 137 (2008), entitling him to
relief).
To the extent Minter created a bright-line rule that
futility
may
not
constitute
an
extraordinary
circumstance,
Holland requires that we at least apply such a rule on a caseby-case basis. 5
5
Moreover, the factual differences in the cases aside, our
outcome is entirely consistent with Holland.
Indeed, the
circumstances here are arguably more compelling, given that
attorney errors are generally attributable to clients, see
Holland, 560 U.S. at 656 (Alito, J., concurring) (citation
omitted), while this case deals with our own error in
(Continued)
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When examining the particular circumstances of Whiteside’s
case, we find that he satisfies the requirements necessary for
equitable tolling.
sentence
amounted
He has successfully demonstrated that his
to
a
fundamental
miscarriage
of
justice.
Correcting unjust incarcerations is the whole purpose of § 2255.
As
the
Supreme
Court
explained
in
Holland,
the
AEDPA’s
time
limitations do not foreclose this relief to all those who are
unable to meet the statute’s deadlines.
Had Whiteside filed
within the one-year statute of limitations, he likely would have
been forced to suffer the injustice with no future chance at
relief.
The timing of our decisions should not be the sole
determinant of a petitioner’s access to justice.
Whiteside’s
inability to obtain meaningful relief prior to our decision in
Simmons
is
an
extraordinary
circumstance
that
warrants
some
flexibility on our behalf in order “to accord all the relief
necessary to correct . . . particular injustices.”
Id. at 650
(quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
238,
248
(1944)). 6
Accordingly,
we
equitably
toll
the
limitations period and review Whiteside’s claim.
interpreting prior case law. There is no similar justification
for punishing a petitioner for our mistake.
6
Indeed, even the government recognizes that on a case-bycase
basis,
Simmons
relief
should
be
afforded
to
some
(Continued)
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III.
Turning to the merits of the case, we are asked to decide
whether a petitioner may challenge his sentence on collateral
review based on an incorrect application of the career offender
enhancement.
Because
it
is
the
only
response
that
is
both
consistent with the realities of federal sentencing and just, we
answer yes.
Section 2255 allows federal prisoners to move to set aside
sentences that are imposed “in violation of the Constitution or
laws of the United States.”
to constitutional errors.
333, 345-56 (1974).
Thus, § 2255 relief is not limited
See Davis v. United States, 417 U.S.
However, a non-constitutional error may
only serve as a basis for collateral attack when it involves “a
fundamental
defect
which
inherently
results
in
a
complete
petitioners notwithstanding limitations or appeal waivers.
See
Mungro v. United States, Nos. 5:11-cv-141-RLV & 5:04-cr-18-RLVCH-1, 2013 WL 6800822, at *6-*7 & n.3 (W.D.N.C. Dec. 23, 2013)
(granting § 2255 motion to vacate the prisoner's mandatory life
sentence on Simmons grounds, and noting that the government had
waived
“reliance
on
the
statute-of-limitations
defense”);
Sturvidant v. United States, Nos. 3:12-CV-66-FDW & 3:09-cr-39FDW-6, 2013 WL 6669025, at *1, *3 (W.D.N.C. Dec. 18, 2013)
(granting Simmons relief after government “declined to enforce”
the
defendant’s
plea-agreement
waiver
of
the
right
to
collaterally attack his sentence). As the government apparently
concluded in Mungro, we conclude that in this case “it would be
unconscionable to enforce the limitation period against the
[petitioner] and gross injustice would result” were we to do so.
Minter, 230 F.3d at 667 (quoting Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000) (§ 2254 case)).
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miscarriage of justice.”
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United States v. Addonizio, 442 U.S.
178, 185 (1979) (internal quotation marks omitted).
The Supreme
Court has provided only the general contours of what constitutes
a complete miscarriage of justice.
For example, in Hill v.
United States, 368 U.S. 424, 429 (1962), the Court reviewed a
sentencing judge’s failure to inform a defendant that he had the
right
to
speak
characterized
formal
at
this
his
sentencing
as
mistake
requirements
of
a
hearing.
failure
a
rule,
mere
and
constitute a basis for habeas relief.
held
The
to
that
Court
follow
it
did
the
not
Id.; see also Peguero v.
United States, 526 U.S. 23 (1999) (failure to inform defendant
of
the
United
right
to
States
v.
appeal
where
Timmreck,
defendant
441
U.S.
780
knew
of
(1979)
mention a special parole term at Rule 11 hearing).
the
right);
(failure
to
In contrast,
in Davis the Court held that a post-conviction change in the law
that
rendered
correctable
on
the
defendant’s
collateral
conduct
review
no
because
longer
criminal
“[t]here
can
be
is
no
doubt that such a circumstance inherently results in a complete
miscarriage
of
justice
. . . .”
417
U.S.
at
346
(internal
quotation marks omitted).
Like a number of our sister circuits, we have held that
“ordinary misapplication of the guidelines does not amount to a
miscarriage of justice.”
United States v. Mikalajunas, 186 F.3d
490, 496 (4th Cir. 1999) (collecting cases); see also United
15
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States
v.
Filed: 04/08/2014
Pregent,
190
F.3d
Pg: 16 of 69
279,
283-84
(4th
Cir.
1999).
However, we have not offered a considered explanation of what
constitutes
an
“ordinary”
something more fundamental.
Guidelines
error
as
opposed
to
In Mikalajunas, we held that an
improper two-level enhancement for restraint of the victim did
not amount to a complete miscarriage of justice.
496.
In
criminal
Pregent,
history
we
had
considered
been
whether
wrongly
a
calculated
186 F.3d at
defendant
whose
resulting
in
a
sentence four months too long was entitled to seek relief from
the supervised release portion of his sentence.
& n.4.
190 F.3d at 283
Although we assumed that the error was cognizable on
collateral
review,
untimely.
We have not had occasion to address the specific
issue
presented
enhancement
is
in
so
we
this
dismissed
case:
significant
the
defendant’s
whether
that
its
the
claim
career
improper
as
offender
application
amounts to a fundamental miscarriage of justice. 7
7
Our friend in dissent accuses us of running “roughshod”
over circuit precedent.
This is demonstrably not the case.
Aside from the fact, explained below, that the career offender
enhancement is plainly not a run-of-the-mill guideline, the
dissent ignores the particulars of our prior cases.
In United
States v. Pettiford, 612 F.3d 270, 275 (4th Cir. 2010), the
petitioner filed a motion to vacate his Armed Career Criminal
Act enhanced sentence following a state court vacatur of two of
his predicate offenses.
We denied the motion because it was
undisputed that, following the vacatur, the petitioner still had
three remaining ACCA qualifying convictions in his record. Id.
at 276-77.
Thus, our statement regarding the availability of
collateral review to correct Guidelines errors was pure dicta.
(Continued)
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Three
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courts
of
appeals
Pg: 17 of 69
have,
however,
confronted
precise question, albeit with differing results.
United
States,
644
Eighth
Circuit
considered
Court’s
decision
F.3d
in
700
(8th
the
Begay,
Cir.
question
which
2011)
In Sun Bear v.
(en
banc),
following
limited
this
the
the
the
Supreme
category
of
defendants eligible for career offender status by narrowing the
definition of a crime of violence.
See 553 U.S. at 148. 8
Sun
Bear held that career offender status is an “ordinary question[]
of [G]uideline interpretation,” and that misapplication of this
status is not an error that results “in a complete miscarriage
of justice.”
The
644 F.3d at 704 (citation omitted). 9
Seventh
conclusion.
Circuit
initially
reached
a
different
In Narvaez, the court held that because of changes
Likewise, as explained above, in Pregent we assumed that
petitioner had stated a cognizable claim before dismissing
petition as untimely.
190 F.3d at 284.
Moreover,
petitioner in Pregent was arguing for the termination of
supervised release portion of his sentence, a far cry from
situation confronting Whiteside. Id. at 283.
the
his
the
the
the
8
The court first acknowledged that Begay set forth a
substantive rule that could be applied retroactively on
collateral appeal. We need not consider this preliminary issue
with respect to Simmons, since we have previously determined
that Simmons announced a substantive rule that may be raised in
a habeas proceeding. See Miller v. United States, 735 F.3d 141,
147 (4th Cir. 2013).
9
It is worth noting that the sentence imposed in Sun Bear
was within the Guidelines range applicable even in the absence
of the career offender enhancement. Id. at 705.
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to the law under Begay and Chambers v. United States, 555 U.S.
122 (2009), the defendant “never should have been classified as
a career offender and never should have been subjected to the
enhanced
punishment
offenders.”
court
for
such
repetitive
and
violent
Narvaez, 674 F.3d at 627 (emphasis omitted).
deemed
miscarriage
reserved
of
the
resulting
justice
career
even
applicable statutory maximum.
though
offender
it
Id. at 629.
fell
The
sentence
beneath
a
the
The court explained:
The imposition of the career offender status branded
Mr. Narvaez as a malefactor deserving of far greater
punishment than that usually meted out for an
otherwise
similarly
situated
individual
who
had
committed the same offense. It created a legal
presumption that he was to be treated differently from
other offenders because he belonged in a special
category reserved for the violent and incorrigible.
No amount of evidence in mitigation or extenuation
could erase that branding or its effect on his
sentence. His designation as a career offender simply
took as unchallenged a premise that was not true and
gave him no way of avoiding the consequences of that
designation.
Id.
Narvaez, however, dealt with a sentence issued prior to
United
States
Guidelines
v.
remained
Booker,
543
mandatory.
U.S.
220
Shortly
(2005),
after
when
the
the
Narvaez
decision, the Seventh Circuit limited its holding to sentences
issued under the mandatory Guidelines.
See Hawkins v. United
States, 706 F.3d 820, 824 (7th Cir. 2013) supplemented on denial
of reh’g, 724 F.3d 915 (7th Cir. 2013), cert. denied, 134 S. Ct.
18
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1280 (Feb. 24, 2014).
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In Hawkins, the court held that post-
Booker, Guidelines errors were “less serious,” and that as long
as the sentence imposed was beneath the statutory maximum it was
not subject to correction on collateral review.
The Eleventh Circuit then reached the opposite conclusion
of both the Eighth and Seventh Circuits.
In a case that was
recently vacated pending rehearing en banc, Spencer v. United
States, 727 F.3d 1076, 1087 (11th Cir. 2013), vacated pending
reh’g en banc, (11th Cir. Mar. 7, 2014), the court stated that
an
erroneous
career
offender
enhancement
amounts
to
a
fundamental miscarriage of justice because “categorization as a
career offender is not merely a formal requirement of a criminal
procedural rule.”
Guidelines
are
sentencing.”
This was true because, even post-Booker, “the
the
heart
of
Id. at 1087.
the
substantive
law
of
federal
Central to the panel’s reasoning was
the Supreme Court’s recent decision in Peugh v. United States,
___ U.S. ___, 133 S. Ct. 2072 (2013).
In Peugh, the Court held that retroactive application of a
Guideline
that
increases
a
defendant’s
applicable
Guidelines
range violates the Ex Post Facto Clause of the Constitution.
Id. at 2084.
In the process, the Court reaffirmed the important
role that the Guidelines play in sentences issued post-Booker.
The Court stated that the Guidelines remain “the lodestone of
sentencing,” id., and that “[t]he post-Booker federal sentencing
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scheme aims to achieve uniformity by ensuring that sentencing
decisions are anchored by the Guidelines . . . .”
(emphasis added).
Id. at 2083
The Court also noted the requirement that
“‘district courts must begin their analysis with the Guidelines
and
remain
process.’”
cognizant
of
them
throughout
the
sentencing
Id. (quoting Gall v. United States, 552 U.S. 38, 50
n.6 (2007)).
The Court explained that this and other hurdles
“make the imposition of a non-Guidelines sentence less likely,”
id. at 2083-84, and that an increase in the Guidelines range
still creates a “significant risk of a higher sentence.”
2088.
Id. at
In support, the Court cited Sentencing Commission data
showing that, absent a government motion for a variance, roughly
eighty percent of defendants since 2007 have received withinGuidelines sentences.
Id. at 2084.
Relying on the Supreme Court’s recent pronouncements and
citing
offender
pretend
additional
statistical
enhancement,
that,
because
data
concerning
the
Spencer
panel
of
Booker,
career
longer matters to sentence length.”
held,
the
career
“[w]e
cannot
offender
727 F.3d at 1088.
status
no
Instead,
“an erroneous career offender Guideline calculation, even though
20
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advisory,
Filed: 04/08/2014
. . .
can
sentencing analysis.”
amount
to
Pg: 21 of 69
a
fundamental
defect
in
the
Id. at 1088-89. 10
We agree with the Spencer panel’s reasoning and hold that
an
erroneous
amounts
to
application
a
of
fundamental
the
career
miscarriage
cognizable on collateral review.
offender
of
enhancement
justice
that
is
By no rubric can the impact of
the career offender enhancement be considered “ordinary.”
The
Supreme Court has recognized that career offender status creates
“a
category
punishment.”
of
offender
subject
to
particularly
severe
Buford v. United States, 532 U.S. 59, 60 (2001).
And as cited in Spencer, Sentencing Commission data show the
continued impact of the enhancement on sentences administered
post-Booker.
For
example,
in
2012,
the
mean
sentence
for
criminal history category VI non-career offenders was 84 months
and
the
median
was
60
months.
For
career
offenders,
those
figures increased to a mean of 163 months and a median of 151
months.
For
drug
trafficking
offenses,
criminal
history
category VI non-career offenders received a mean sentence of 115
10
After Peugh, the panel in Hawkins released supplemental
opinions discussing Peugh’s impact on its case.
See 724 F.3d
915 (7th Cir. 2013). Disagreeing with the Eleventh Circuit, the
court upheld its earlier decision that the advisory nature of
the Guidelines prevented the petitioner from obtaining relief.
Id. at 916-17.
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months and a median of 96 months; those figures jumped to 154
months and 144 months respectively for career offenders.
Whiteside’s
dramatic impact.
case
is
representative
of
the
enhancement’s
Absent the enhancement, he would have faced a
Guidelines range of 140 to 175 months; after it was applied, his
range skyrocketed to 262 to 327 months. 11
The district court
eventually departed downward from this range to a period of 210
months;
but
that
is
exactly
the
point:
the
court
departed
downward from what was believed to be the applicable Guidelines
range
in
range,
fashioning
although
the
ultimate
advisory,
retained
throughout Whiteside’s sentencing.
was
dropped
in
the
wrong
sentence.
place.
its
The
Guidelines
anchoring
effect
It is just that the anchor
The
Supreme
Court
has
recognized this effect, stating that “[e]ven if the sentencing
judge sees a reason to vary from the Guidelines, ‘if the judge
uses the sentencing range as the beginning point to explain the
decision to deviate from it, then the Guidelines are in a real
sense the basis for the sentence.’”
Peugh, 133 S. Ct. at 2083
(quoting Freeman v. United States, 564 U.S. ___, ___, 131 S. Ct.
2685, 2692 (2011) (plurality opinion)) (emphasis in original).
11
These figures put aside consideration of the statutory
minimum penalty, which, of course, we also know was improperly
applied in light of Simmons.
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In Whiteside’s case, had the district court begun with the
correct
range,
it
different sentence.
same
twenty
almost
would
have
imposed
a
Consider that if the court had employed the
percent
assistance,
certainly
Whiteside
downward
would
departure
have
based
received
months as compared to 210 months.
a
on
substantial
sentence
of
112
And in the abstract, it is
highly unlikely that any defendant with a Guidelines range of
140 to 175 months who has been granted a § 5K1.1 motion for a
downward departure would receive a sentence 35 months in excess
of the high-end of that range.
At the very least, the § 3553
factors supporting such an increase would be subject to rigorous
review under Gall on direct appeal.
It is not by accident that the career offender enhancement
so significantly impacts defendants’ sentences.
Unlike most of
the Guidelines, which are based on the policy calculations of
the
Sentencing
Commission,
the
career
offender
derives from a congressional requirement.
that
“[t]he
Commission
shall
assure
that
enhancement
A statute provides
the
[G]uidelines
specify a sentence to a term of imprisonment at or near the
maximum
term
enhancement.
Commission
authorized”
28
U.S.C.
fashioned
for
those
§ 994(h).
strict
who
Heeding
penalties
for
qualify
this
career
for
charge,
the
the
offenders:
their criminal history categories are automatically boosted to
VI, the highest possible rung, and their offense levels become
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tied to the statutory maximum penalty as opposed to the actual
conduct of conviction.
contributed
to
the
See U.S.S.G. § 4B1.1(b).
significant
increase
Both factors
in
Whiteside’s
Guidelines range.
Clearly then, the impact of the career offender enhancement
is far from ordinary.
It is certainly nothing like the two-
level enhancement for restraint of the victim which we rejected
as a source of habeas relief in Mikalajunas.
That case presents
a far better example of a garden variety Guidelines adjustment
that,
while
possibly
having
an
impact
on
the
defendant’s
sentence, cannot be said to constitute a fundamental miscarriage
of
justice.
defendant
possible
as
In
a
contrast,
hopeless
punishment,
and
an
enhancement
recidivist
that
has
worthy
the
that
of
effect
the
of
casts
the
strictest
robbing
a
defendant of his freedom for some eight years, is fundamentally
different. 12
The government is certainly correct in remarking that this
case does not present exactly the kind of error recognized by
12
The dissent faults us for failing to provide a “nonarbitrary” line delimiting the types of sentencing errors that
constitute “extraordinary circumstances.”
Post at 47.
Given
the inherent folly of attempting to forecast the contours of
“extraordinary” events, our review is quite properly limited to
the case before us, and we decide only that when subsequent case
law makes manifestly clear that a petitioner was wrongly
designated a career offender he may challenge his sentence
through a § 2255 motion.
24
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Supreme
Filed: 04/08/2014
Court
in
Davis.
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The
petitioner
in
convicted for actions later deemed not criminal.
Davis
was
417 U.S. at
346.
The Court remarked that “[t]here can be no room for doubt
that
such
a
circumstance
inherently
miscarriage of justice . . . .”
and citation omitted).
results
in
a
complete
Id. (internal quotation marks
We reached a similar result in applying
Simmons to vacate a felon-in-possession conviction in Miller.
Here, the instant conviction for which Whiteside was sentenced
remains
valid.
Regardless,
though,
Whiteside
is
almost
certainly serving time he would not be absent the enhancement.
The mere fact that he was properly convicted does not somehow
excuse an obviously legally erroneous sentence. 13
13
The dissent refuses to acknowledge the basic truth
underlying our decision: that Whiteside is not, and was not,
properly designated a career offender.
Our sentencing regime
prior to Simmons was overinclusive; it swept up defendants whose
criminal histories, when viewed individually – a general bugaboo
of the dissent – did not expose them to the enhancement.
Simmons corrected this mistake by directing district courts to
examine the specifics of the defendant’s predicate convictions.
Under this approach, there is no question Whiteside should not
have received the enhancement.
Simply because a criminal
defendant was at one point classified a career offender does not
mean that classification was ever correct.
Neither the Eighth
nor Seventh circuits had any trouble recognizing that by
narrowing the definition of the terms “crime of violence” and
“violent felony,” Begay and Chambers exposed “errors” in how the
Guidelines had been applied.
See Sun Bear, 644 F.3d at 704;
Hawkins, 706 F.3d at 823. The effect of Simmons on Whiteside’s
case is no different. This point is underscored by our decision
in Miller finding Simmons to have announced a new substantive
rule retroactive on collateral review.
735 F.3d at 147.
In
Miller, we recognized that by “alter[ing] ‘the class of persons
(Continued)
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Nor does the fact that Whiteside was sentenced beneath the
applicable statutory maximum mitigate the mistake.
Contrary to
the government’s contention, this fact alone does not make a
sentence
“lawful,”
conclusion
is
appellate
for
contrary
review.
several
to
our
While
reasons.
First,
a
principles
of
well-established
such
sentencing
review
is
highly
deferential, that “does not mean there is no review at all.”
United States v. Abu Ali, 528 F.3d 210, 268-69 (4th Cir. 2008).
“If
Gall
meaningful
decision
had
intended
review,
. . .
to
there
to
dispense
would
direct
have
district
with
any
been
no
courts
calculat[e] the applicable Guidelines range.’”
(quoting Gall, 552 U.S. at 49).
from
the
deviation
need
to
for
of
the
‘correctly
Id. at 265-66
And when sentencing courts vary
Guidelines,
they
must
and
that
the
ensure
semblance
“consider
the
justification
extent
is
of
the
sufficiently
that the law punishes,’” Simmons had a dramatic impact on the
substantive rights of criminal defendants. Id. at 146 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).
The Miller
court had no hesitation in overturning the petitioner’s
conviction – and his accompanying sentence of 72 months,
potentially less time than Whiteside is wrongly serving - even
though the conviction was originally consistent with controlling
precedent. Id. at 143, 147. Given the continued importance of
the Guidelines generally post-Booker, and the impact of the
career offender enhancement in particular, there is no reason,
in theory or in practice, to reach a different result here. At
the very least, there can be no honest question that Whiteside’s
designation as a career offender was in fact “erroneous.”
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compelling to support the degree of the variance.”
U.S. at 50.
Guidelines
district
Gall, 552
We have demonstrated our willingness to vacate nonsentences
court’s
that
are
unreasonable
explanations.
See,
in
e.g.,
light
United
of
States
the
v.
Engle, 592 F.3d 495, 505 (4th Cir. 2010); Abu Ali, 528 F.3d at
268-69.
Of
appeal.
role
in
course,
these
standards
are
utilized
only
on
direct
But they highlight the rigor with which we view our
ensuring
that
each
and
every
defendant
sentenced
in
federal court receives a fair and reasonable sentence, to say
nothing of a lawful one.
The
animating
different here.
principles
of
fundamental
justice
are
no
First, through no fault of his own, Whiteside’s
opportunity for such review did not arise until after the period
in which to file a direct appeal had lapsed.
challenged
his
career
offender
status
on
Had Whiteside
direct
appeal,
his
argument would have been rejected by our pre-Simmons line of
cases.
See United States v. Harp, 406 F.3d 242 (4th Cir. 2005);
United States v. Jones, 195 F.3d 205 (4th Cir. 1999).
not
be
punished
–
and
we
mean
literally
He should
punished,
as
in
additional time spent in federal prison, time which the law does
not countenance – for this fact.
Acknowledging that a defendant
would likely be entitled to a vacated sentence on direct appeal
but not on a timely filed habeas motion simply due to the timing
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one
of
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our
decisions
Pg: 28 of 69
contributes
to
the
conclusion
that
denial of review operates a complete miscarriage of justice.
Second, the Supreme Court just last year told us that the
advisory nature of the Guidelines does not cure the harm that
results
starting
from
utilizing
point.
See
an
incorrect
Peugh,
133
S.
Guidelines
Ct.
at
range
2086;
as
see
a
also
Spencer, 727 F.3d at 1087 (“The Seventh Circuit [in Hawkins] may
think
that
mistakenly
categorizing
a
defendant
as
a
career
offender became not very serious once Booker made the Guidelines
advisory, but the Supreme Court told us in June . . . that the
Guidelines are still ‘the lodestone of sentencing.’” (quoting
Peugh, 133 S. Ct. 2084)) (citation omitted).
In Peugh, the
Court ruled that retroactive application of a Guideline violates
the Constitution even when the vacated sentence is beneath the
statutory maximum.
ultimately
The Court stated, “that a district court may
sentence
a
given
defendant
outside
the
Guidelines
range does not deprive the Guidelines of force as the framework
for sentencing.”
concerned
magnitude,
a
Peugh, 133 S. Ct. 2076.
direct
appeal,
indicating
that
it
the
found
And though Peugh
error
mistake
of
also
constitutional
would
have
been
correctable on collateral review.
In addition to the continued vitality of the Guidelines in
an
advisory
system,
Peugh
also
drew
on
the
principles
fairness and justice that animate the Ex Post Facto Clause.
28
of
Id.
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at 2085 (“[T]he Clause also safeguards a fundamental fairness
interest . . . in having the government abide by the rules of
law it establishes to govern the circumstances under which it
can deprive a person of his or her liberty or life.” (internal
quotation marks and citation omitted) (ellipsis in original));
id. (“[The Clause] does not merely protect reliance interests.
It also reflects principles of fundamental justice.”).
We find
that these principles map easily onto our analysis of whether
Whiteside was subject to a fundamental miscarriage of justice.
Because of the career offender enhancement, Whiteside’s sentence
is plainly at odds with what he would receive were he sentenced
today.
He is not a career offender, and he should not serve a
sentence that was based on his classification as one.
The mere
fact that his sentence was beneath the statutory maximum does
not somehow assuage this fundamental unfairness.
In the face of this clear injustice, the government pleads
that
we
respect
-
with
something
finality of sentencing decisions.
important
consideration.
It
approaching
sanctity
-
the
We agree that finality is an
encourages
defendants
to
accept
their punishments and move forward with their lives; as well, it
minimizes
the
misuse
of
judicial
resources.
Perhaps
most
importantly, in cases involving victims, finality offers these
individuals some degree of peace of mind and a sense that their
suffering has not been forgotten.
29
But we do not agree that
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these considerations, to the extent that they apply here, can or
should
outweigh
the
plain
injustice
that
would
result
from
denying the petitioner what he seeks, which is only a chance to
be
sentenced
should
according
apply.
Were
we
to
to
the
factors
conclude
that
everyone
otherwise,
we
agrees
would
be
putting “bureaucratic achievement” ahead of our task of ensuring
that all those who come before us receive meaningful review of
their claims.
Gilbert v. United States, 641 F.3d 1293, 1337
(11th Cir. 2011) (Hill, J., dissenting).
gatekeepers.
We are more than mere
Congress has given us the authority on collateral
review to relieve errors that amount to fundamental defects in
process
or
justice.
Erroneous
application
of
the
career
offender enhancement works such an injustice, and we will not
turn a blind eye to so obvious an error simply for the sake of
finality. 14
14
Unfortunately, our dissenting colleague sounds the alarm
that after today’s decision no criminal sentence is safe from
collateral attack. The dissent’s attempts to expand our holding
on our behalf could only result from its larger, misguided goal
of convincing the reader that habeas relief is somehow harmed by
its utilization. Somewhat amazingly, the dissent is explicit on
this point.
Post at 68.
With due respect to our colleague’s
views, habeas review is not merely a deterrent that fulfills its
purpose by its threatened use; criminal defendants are aided
only when it is employed.
The dissent would have its own
exaltation of the history of the Great Writ and § 2255 relief
contribute to the mechanism’s futility.
Accusing us of Whig
history, the dissent’s approach is rank with the fearful
mistrust
of
individualized
decision-making
inherent
to
traditional conservatism.
The suggestion that district courts
(Continued)
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Because
we
find
that
Pg: 31 of 69
Whiteside
suffered
a
fundamental
miscarriage of justice, we need not address his additional claim
that
the
error
process.
We
question
to
violated
have,
the
his
constitutional
however,
extent
considered
necessary
to
rights
the
grant
to
constitutional
a
certificate
appealability, which has yet to issue in this case.
U.S.C.
§ 2255(c)
appealability
showing
of
added).
only
the
A
(permitting
where
denial
constitutional
petitioner
of
certificate
question
issuance
“has
the
same
reasons
a
constitutional
of
appealability
that
is
discussed
may
of
substantial
right”)
“debatable.”
above
a
of
See 28
certificate
made
a
Cockrell, 537 U.S. 322, 337, 338 (2003).
for
of
due
(emphasis
issue
on
Miller-El
a
v.
We are satisfied that,
with
regard
to
the
fundamental defect/miscarriage of justice claim, it is at least
debatable
that
erroneous
application
of
the
career
offender
enhancement deprived Whiteside of his liberty in violation of
and future panels of this court cannot discern actual injustices
from less serious errors casts too critical an eye on the judges
throughout our circuit.
In short, we simply do not share the
view that the criminal justice system is somehow harmed when
defendants are sentenced according to a proper understanding and
application of the law.
31
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his due process rights.
Pg: 32 of 69
We therefore grant a certificate of
appealability. 15
IV.
For
tolling
the
reasons
applies
to
stated
above,
Whiteside’s
we
claim.
hold
We
that
also
equitable
hold
that
erroneous application of the career offender enhancement amounts
to a fundamental miscarriage of justice that can be corrected on
collateral review.
vacate
Whiteside’s
We grant a certificate of appealability,
sentence,
and
remand
the
case
for
resentencing.
VACATED AND REMANDED FOR RESENTENCING
15
Although Whiteside fashioned his due process claim on the
Supreme Court’s decision in Hicks v. Oklahoma, 447 U.S. 343
(1980), we think any such claim more aptly derives from Simmons
itself.
For this reason, we need not address the government’s
position that the claim is barred by the non-retroactivity
doctrine of Teague v. Lane, 489 U.S. 288 (1989) (holding that
new rules of criminal procedure may not be raised in postconviction proceedings), since we have already held that Simmons
announced a substantive rule that is applicable on collateral
review. See Miller, 735 F.3d at 147.
32
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DAVIS, Senior Circuit Judge, concurring:
I
am
pleased
compelling
to
opinion,
join
which
Judge
fully
Gregory’s
responds
extraordinarily
to
the
dissent’s
overwrought and formalistic protestations that our judgment here
presages an end to law as we know it. (Evidently, it is not
enough
simply
for
the
dissent
to
say
that
there
is
no
miscarriage of justice shown on this record.)
The dissenting opinion is hopelessly pleased with itself.
This is not surprising, as it prostrates itself at the altar of
finality, draped in the sacred shroud of judicial restraint.
There is much that could be said about the dissenting opinion’s
paean to finality, but one can hardly say it more poignantly or
more persuasively than has Judge Rovner. See Hawkins v. United
States,
724
F.3d
915,
919-25
(7th
Cir.
2013)
(Rovner,
J.,
dissenting from the denial of rehearing), en banc reh’g denied,
725
F.3d
680
(7th
Cir.
2013)
(Rovner,
J.,
joined
by
Wood,
Williams, and Hamilton, JJ., dissenting from denial of rehearing
en banc).
In any event, what’s remarkable is that, as viewed through
the
lens
of
perfectly
fine
which
to
is
our
for
say
good
the
the
friend’s
United
dissenting
States
Executive
opinion,
Department
Branch,
to
it
is
of
Justice,
bypass
supposed
reverence for finality on a case-by-case basis, through waivers
of limitations and other devices, see ante, Maj. op., n.6, but
33
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the Third Branch is duty-bound never to acknowledge instances in
which
law’s
interest
in
finality
must
give
way
to
competing
values rooted in our shared abhorrence of manifest injustice. To
devolve to the Executive Branch sole authority to identify a
cognizable
miscarriage
of
justice
amounts
to
judicial
abdication, not judicial restraint. Such an approach enjoys no
legitimate
place
in
our
scheme
of
institutional
checks
and
balances. The Third Branch’s transcendent role, in our enviable
but
imperfect
system
of
criminal
justice,
is
to
afford
protection from the loss of individual liberty resulting from
profoundly
erroneous
decision-making,
and
not
least
of
all,
erroneous decision-making by the Third Branch itself, as in this
very case.
The dissenting opinion favors what’s “finished” over what’s
“right” and thereby blinks at a profound miscarriage of justice.
It is wrong to do so.
34
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WILKINSON, Circuit Judge, dissenting:
Deangelo
Whiteside
was
properly
designated
a
career
offender in the course of his federal sentencing proceedings.
Now,
years
later,
invalidating
circuit
the
majority
Whiteside’s
split
over
vacates
sentence,
whether
the
that
sentence.
majority
career-offender
creates
designations
In
a
are
cognizable on collateral review, and ignores settled law as to
whether changes in circuit precedent can reset the statute of
limitations
for
post-conviction
review
of
federal
criminal
proceedings.
The
federal
majority
collateral
precedent.
that
opinion
have
convictions.
represents
review
that
is
a
dramatic
unsupported
expansion
by
law
of
or
It makes a shambles of the retroactivity doctrines
long
It
safeguarded
disrupts
the
the
basic
orderly
finality
of
administration
criminal
of
our
criminal-justice system.
If it were purely a matter of orderly administration, that
might be an arid basis on which to deny relief.
no injustice done here.
But there was
Whiteside pled guilty to possession
with intent to distribute at least 50 grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1), and his two predicate felony
drug offenses plainly qualified him for career-offender status
under U.S.S.G. § 4B1.1, a status to which Whiteside did not
object.
35
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None of these convictions has ever been invalidated.
No
procedural or substantive irregularity ever marked the plea or
sentencing
proceedings.
In
short,
Whiteside
was
sentenced
according to the law as it existed at that time.
Absent a
constitutional violation or miscarriage of justice, neither of
which is remotely present here, that is all a criminal defendant
can
ask
or
expect.
Moreover,
the
defendant
must
raise
the
petition in a timely manner, which Whiteside has failed to do.
My colleagues attempt a basic restructuring of the purposes
of collateral review in not one, but two, respects.
It is bad
enough that the majority envisions collateral proceedings as a
form of error correction intended, not so subtly, to supplant
direct review.
even worse.
The comparative question the majority poses is
It inquires whether yesterday’s result was the same
that would or should obtain today.
To the contrary, collateral
review is what its name implies: whether the proceedings under
review conformed to law as it instructed at the time.
If they
did, the rule of law was honored and upheld, and further inquiry
is impermissible.
Because
any
other
disposition
of
this
case
would
open
concededly lawful proceedings to endless and untimely collateral
attack, I would affirm the district court’s dismissal of the
petition.
For
the
reasons
set
dissent.
36
forth
below,
I
respectfully
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I.
The majority opinion creates a square circuit conflict over
whether
allegedly
erroneous
career-offender
designations
in
particular, and what Sentencing Guidelines errors in general,
are cognizable on a 28 U.S.C. § 2255 petition for collateral
review.
On one side are the opinions of the Seventh and Eighth
Circuits holding challenges to career-offender designations not
cognizable.
See Hawkins v. United States, 706 F.3d 820, 823
(7th Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915
(7th Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24,
2014) (No. 13-538); Sun Bear v. United States, 644 F.3d 700,
705-06 (8th Cir. 2011) (en banc).
On the other side are my
colleagues in the majority and, until recently, an opinion in
the Eleventh Circuit, see Spencer v. United States, 727 F.3d
1076, 1088-89 (11th Cir. 2013), vacated pending reh’g en banc,
(11th Cir. Mar. 7, 2014) (No. 10-10676).
As I see this dispute
as both a primary and threshold issue, I shall address it first.
Like traditional habeas corpus, § 2255 “does not encompass
all claimed errors in conviction and sentencing.”
v. Addonizio, 442 U.S. 178, 185 (1979).
neither
§ 2255
constitutional
only
if
it
nor
jurisdictional
constitutes
“a
United States
A trial error that is
is
cognizable
fundamental
defect
under
which
inherently results in a complete miscarriage of justice, [or] an
omission
inconsistent
with
the
37
rudimentary
demands
of
fair
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procedure.”
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Hill v. United States, 368 U.S. 424, 428 (1962).
Courts have consistently reaffirmed this principle since Hill.
See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993);
United States v. Timmreck, 441 U.S. 780, 783-84 (1979); United
States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999).
As
neither
Whiteside
nor
the
majority
claims
that
the
district court lacked jurisdiction when it sentenced him as a
career
offender,
Whiteside’s
claim
is
only
cognizable
if
it
alleges a constitutional error or a fundamental defect resulting
in a miscarriage of justice.
Whiteside can satisfy neither of
these requirements.
A.
The
heart
of
constitutional error.
collateral
review
is
the
correction
of
In fact, a certificate of appealability,
which is necessary to appeal from a district court’s final order
in
a
§ 2255
proceeding,
requires
the
petitioner
to
make
“a
substantial showing of the denial of a constitutional right.”
28
U.S.C.
§ 2253(c)(2).
Whiteside
has
made
no
“substantial
showing” of the denial of a “constitutional right.”
And even if
he had made such a showing, he could not possibly prevail on the
merits of his claim.
The
only
colorable
constitutional
claim
even
plausibly
available to Whiteside is that he was denied due process in
violation of the Fifth Amendment.
38
But there was no denial of
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due process here.
occurring
at
Pg: 39 of 69
There is no claim of procedural irregularity
any
point
in
these
proceedings.
While
the
sentencing regime in force at the time of Whiteside’s sentencing
was later overturned in United States v. Simmons, 649 F.3d 237,
241 (4th Cir. 2011) (en banc), nothing in that case suggests
that Whiteside’s sentence failed to comply with the law in force
at the time the sentence was imposed.
The method for analyzing
predicate state-court convictions applied in Whitside’s case had
been affirmed by numerous panels of this court.
See, e.g.,
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005); United
States v. Jones, 195 F.3d 205, 207 (4th Cir. 1999).
case
that
overturned
the
rule
in
force
at
Indeed, the
the
time
of
Whiteside’s sentencing did not occur until August 2011, well
after Whiteside’s own case was finalized in August 2010.
I thus cannot embrace the paradox that a manifestly lawful
criminal proceeding amounts to an unlawful deprivation of due
process.
Lawful one day, unlawful the next -– it makes no
sense.
The
doctrinal
hook
for
Whiteside’s
due
process
challenge, the Supreme Court’s decision in Hicks v. Oklahoma,
447 U.S. 343 (1980), provides no support for his claim.
Hicks,
the
jury
imposed
a
mandatory-minimum
40-year
In
sentence
after being instructed that it was required to do so in light of
the
petitioner’s
Oklahoma
Court
two
of
prior
Criminal
state
convictions.
Appeals
39
declared
Later,
the
the
mandatory-
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minimum
law
Filed: 04/08/2014
unconstitutional
petitioner’s sentence.
the
Pg: 40 of 69
petitioner’s
due
but
refused
to
vacate
the
The Supreme Court reversed, finding that
process
rights
were
violated
when
the
jury’s discretion to sentence below the mandatory-minimum 40year
term
was
improperly
limited,
even
imposed was beneath the statutory maximum.
though
the
sentence
See Hicks, 447 U.S.
at 344-46.
Hicks differs markedly from this case: the Hicks jury was
barred from exercising its full sentencing discretion, whereas
the
district
court
here
not
only
recognized
that
it
had
discretion to depart from the Guidelines range, but in fact did
so when it sentenced Whiteside to a below-Guidelines sentence.
This
distinction
makes
all
the
difference.
Whiteside
was
entitled to a sentence somewhere between the statutory minimum
and maximum, imposed after the Guidelines range was properly
calculated in accordance with the law that existed at the time.
This he received, and thus there is no violation of any sort
anywhere to be found.
But even if Hicks could be bent and stretched to support
Whiteside’s due process claim, it would still be procedurally
unavailable to him.
Under Teague v. Lane, 489 U.S. 288 (1989),
a court may not apply a new rule of constitutional criminal
procedure
on
habeas
except
in
two
narrow
and
infrequent
instances: where the rule places conduct outside the scope of
40
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Filed: 04/08/2014
criminal
sanction,
(1990),
or
see
Pg: 41 of 69
Saffle
constitutes
a
v.
Parks,
“‘watershed
494
U.S.
rule[]
484,
of
494
criminal
procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding,” id. at 495 (quoting Teague, 489 U.S.
at 311 (plurality opinion)); see also United States v. Martinez,
139 F.3d 412, 416 (4th Cir. 1998) (holding that Teague applies
to § 2255 petitions).
Teague
insisted,
then,
that
retroactivity
doctrine
not
succumb to a severe case of presentism, where a decision later
in time not only becomes the law, but seeks to discredit all
that went before.
was
not
Thus, a rule is new for Teague purposes if it
“dictated
by
precedent
existing
defendant’s conviction became final.”
at
the
time
the
Graham v. Collins, 506
U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301) (emphasis
and internal quotation marks omitted).
A novel “application of
an old rule in a manner that was not dictated by precedent”
counts as a new rule for Teague purposes.
Stringer v. Black,
503 U.S. 222, 228 (1992).
Because
Hicks
does
not
apply
at
all
to
Whiteside’s
situation, let alone squarely address it, Whiteside’s attempt to
extend
apply
Hicks
a
collateral
new
would
rule
review:
constitutional
right
require
of
to
announce
constitutional
namely
to
us
an
that
a
amended
41
and
criminal
criminal
sentence
retroactively
procedure
defendant
based
on
has
on
a
later
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decisional law that calls into question an advisory Guidelines
calculation manifestly correct at the time it was imposed.
This
case is thus very different from Miller v. United States, in
which we held that, under the retroactivity principles announced
in Schriro v. Summerlin, 542 U.S. 348 (2004), Simmons was a
substantive
rule
petitioner’s
and
§ 2255
thus
applied
petition
alleged
retroactively
actual
innocence
conviction for firearm possession by a felon.
145-47 (4th Cir. 2013).
where
the
of
a
735 F.3d 141,
Here, by contrast, Whiteside asks us to
announce a novel due process rule that is completely distinct
from Simmons itself.
Furthermore, Whiteside’s proposed new rule would not fit in
either of the Teague exceptions.
It does not place any conduct
outside the reach of the criminal law.
exceedingly
rare
case
of
a
Nor does it present the
“watershed
rule
of
criminal
procedure,” since the procedural rule that Whiteside wants us to
announce is not “implicit in the concept of ordered liberty.”
Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401
U.S. 667, 693 (1971) (Harlan, J., concurring in the judgments in
part
and
omitted).
dissenting
in
part))
(internal
quotation
marks
Thus, Teague forbids the constitutional relief that
Whiteside seeks.
Seeking to avoid Teague’s restrictions, the majority tries
to hang its constitutional case on Simmons itself and issue the
42
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certificate of appealability on that basis.
& n.15.
a
See Maj. Op. at 31
But Simmons, even if declared retroactive by Miller, is
case
about
interpretation
Constitution.
statutory
of
interpretation
federal
sentencing
-law
namely
--
the
not
the
Given that Hicks is far afield and that any rule
derived obliquely from it cannot possibly be made retroactive
under
Teague,
Whiteside
has
no
constitutional
claim
and
no
entitlement to a certificate of appealability.
B.
Given that Whiteside has no available constitutional claim,
the majority must show that, in light of Simmons, his sentence
is marred by a fundamental defect that resulted in a miscarriage
of justice.
This it cannot do.
federal
are
law
determinations
circumstances.
majority’s
are
cognizable
not
on
except
Although some questions of
§ 2255,
in
the
advisory
most
Guidelines
extraordinary
of
This is not such a case, and underlying the
attempt
to
find
Whiteside’s
claim
cognizable
are
three serious and pervasive errors.
First, the majority refuses to recognize that, after United
States v. Booker, 543 U.S. 220 (2005), errors in calculating
Guidelines ranges are “less serious” than they were previously
because the ranges are no longer binding on sentencing judges.
Hawkins, 706 F.3d at 824.
The situation might be different if
the Guidelines were still mandatory.
43
But those who fought for
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so long to escape the binding strictures of Guidelines sentences
cannot now complain that just because they influence sentencing
behavior they must be treated as binding law.
they may not even be presumed reasonable.
States, 552 U.S. 38, 50 (2007).
Far from binding,
See Gall v. United
The majority today refuses to
respect the major tradeoff of the post-Booker regime: now that
the
Guidelines
are
merely
advisory,
they
lack
the
force
of
binding law at the sentencing phase and thus the ability to
activate collateral review.
As Justice Sutherland observed, if
laws
they
are
not
“upheld
when
pinch
as
comfort, they may as well be abandoned.”
well
as
when
they
Home Bldg. & Loan
Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J.,
dissenting).
The majority disregards this honored maxim and
seeks to have it both ways.
That the Guidelines are advisory is no mere theoretical
point; on remand, the district court will be perfectly free to
impose the exact same sentence on Whiteside.
It is notable that
the district court granted Whiteside only a limited downward
departure
for
substantial
assistance,
itself broadly discretionary.
a
departure
that
was
See United States v. Pearce, 191
F.3d 488, 492 (4th Cir. 1999).
From a recommended Guidelines
range of 262 to 327 months, the district court departed by less
than 20 percent from the bottom of the Guidelines range.
The
district court could have departed downward significantly more
44
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but
Doc: 43
did
not,
Filed: 04/08/2014
strongly
Pg: 45 of 69
suggesting
that
it
viewed
Whiteside’s
criminal record as serious and the Guidelines range as generally
appropriate.
The scenarios spun by the majority on what might or might
not
happen
speculation.
on
resentencing
The
majority
are
suggests
nothing
that
more
the
than
rank
district
court
would likely be unable to satisfy 18 U.S.C. § 3553’s sentencing
factors and “rigorous review under Gall on direct appeal” if it
departed by 20 percent above the top of the newly calculated
Guidelines range of 140 to 175 months and imposed an identical
sentence of 210 months.
bald
attempt
to
put
Maj. Op. at 23.
the
hammer
to
the
Quite apart from this
district
court,
such
speculation ignores the “broad sentencing discretion” afforded
trial judges, Alleyne v. United States, 133 S. Ct. 2151, 2163
(2013), and the lengthy criminal record described in Whiteside’s
presentencing report that will be available for consideration on
resentencing.
Whiteside’s record includes, but is not limited
to, 10 controlled-substances offenses, 7 counts of assault with
a deadly weapon on a government officer, and additional counts
of
assault,
convictions
lengthy
hit
that
record
independently
of
and
run,
Simmons
is
the
and
resisting
a
does
nothing
to
impossible
to
career-offender
public
officer
undermine.
minimize,
since,
designation,
--
This
quite
Whiteside’s
extensive criminal history caused the presentencing report to
45
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recommend
Filed: 04/08/2014
a
criminal-history
Pg: 46 of 69
category
of
V.
Thus,
the
assumption underlying the majority’s ruling -- that but for the
career-offender
enhancement
Whiteside
could
have
shaved
years
and years off his sentence -- is highly questionable.
Second, the majority argues that, because the Guidelines
still
exert
a
substantial
influence
on
sentencing,
career-
offender designations are serious enough to be cognizable on
collateral review.
still
influential
ultimate
No one could deny that the Guidelines are
even
sentence,
after
Booker.
however,
correction under § 2255.
is
Mere
influence
insufficient
on
to
the
warrant
See, e.g., Daniels v. United States,
532 U.S. 374, 376 (2001) (holding that § 2255 cannot generally
be
used
Career
to
challenge
Criminal
(holding
that
Act
predicate
of
§ 2255
convictions
1984);
is
Addonizio,
unavailable
to
under
442
the
U.S.
Armed
at
prisoner
190
seeking
resentencing when post-sentencing changes in parole release-date
calculations allegedly increased effective sentence beyond that
which original sentencing judge intended); Mikalajunas, 186 F.3d
at
496
(holding
restraint
of
that
victim
erroneous
was
sentencing
“ordinary
enhancement
misapplication
for
of
the
[Guidelines] that does not amount to a miscarriage of justice”).
The
majority
never
correction
customarily
reconciled
with
the
explains
reserved
broad
scope
46
how
for
it
the
direct
now
reality
appeal
proposes
of
is
for
error
to
be
§ 2255
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review.
Filed: 04/08/2014
Nor
differentiate
can
why
it,
this
since
Pg: 47 of 69
there
Guidelines
is
that
career-offender
clear
calculation
collateral attack and others are not.
believes
no
is
line
to
open
to
The majority apparently
designations
are
“far
from
ordinary” and should be subject to challenge, Maj. Op. at 24,
but why stop there?
I cannot fathom.
The majority offers no
basis in law for its ruling, and the main reason given is that a
career-offender
designation
results
in
a
substantially
larger
prison term and “casts the defendant as a hopeless recidivist
worthy of the strictest possible punishment.”
Id.
It is left
to the reader to divine why the application of such a penalty
constitutes “extraordinary circumstances” justifying collateral
review.
United States v. Pregent, 190 F.3d 279, 283 (4th Cir.
1999).
Every Guidelines calculation may affect the sentencing
range to a greater or lesser degree, and the majority does not
even hint at a non-arbitrary dividing line.
Instead of a legal
principle, all we get is the majority’s pronunciamento along
with the irrelevant observation that Congress, as it had every
right
to
do,
outlined
the
contours
of
the
career-offender
enhancement for those whose extensive history of law-breaking
posed a continuing social threat.
See Maj. Op. at 23.
Finally, the majority confuses a change in law favorable to
a
defendant
justice.
with
a
fundamental
breakdown
in
procedure
or
As explained above, Whiteside’s sentence was imposed
47
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Pg: 48 of 69
properly,
with
no
procedural
irregularities
errors.
Thus,
to
hold
Whiteside’s
§ 2255
relief
implies
that
that
every
or
substantive
situation
change
in
law
warrants
creates
a
manifest injustice no matter how lawful the prior proceeding.
But “[p]recedential decisions come pouring out of the federal
courts of appeals and the Supreme Court.”
824.
Hawkins, 706 F.3d at
This ebb and flow of decisional law seldom implicates the
fundamental canons of justice.
See Teague, 489 U.S. at 313
(noting that, because procedures falling under Teague’s second
exception
are
innocence
or
“so
guilt,
central
we
to
an
believe
accurate
it
determination
unlikely
that
many
of
such
components of basic due process have yet to emerge”).
Rather than fundamental recastings of the foundations of
justice, most changes in law represent close and contestable
questions
Simmons
on
is
which
a
case
capable
in
jurists
point.
can
The
reasonably
Simmons
disagree.
panel,
which
incidentally included a former Supreme Court Justice, held that
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the basis for
the en banc majority’s decision, did not “compel[] a different
result” from the Harp regime for analyzing predicate state-court
convictions.
United States v. Simmons, 635 F.3d 140, 142 (4th
Cir. 2011), rev’d en banc, 649 F.3d 237 (4th Cir. 2011).
banc
decision
advanced.
featured
opposing
views,
ably
and
The en
earnestly
Compare Simmons, 649 F.3d at 239 (Motz, J.), with id.
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at 250 (Duncan, J., dissenting), and id. (Agee, J., dissenting).
To say now that those on the losing side of the debate were
party
to
some
“miscarriage
of
justice”
requiring
collateral
relief, Hill, 368 U.S. at 428, disserves those whom I know my
friends in the majority hold in the highest esteem.
To further say that a criminal defendant lawfully sentenced
prior to Simmons was the victim of some manifest injustice is to
adopt a naively Whig history of law as an unbroken march toward
progress and enlightenment, when in truth it is more often a
matter of fits and starts, of limitless gray areas, all bereft
of the guarantee that later attempts to reconcile public safety
with human liberty will necessarily be better than earlier ones.
The
majority’s
approach
to
retroactivity
also
ignores
the
analogous reality that plea bargains are contracts under which,
in
exchange
for
avoiding
the
uncertainties
of
trial,
the
defendant “assumes the risk of future changes in circumstances
in light of which [his] bargain may prove to have been a bad
one.”
2005).
United States v. Bownes, 405 F.3d 634, 636 (7th Cir.
This
assumed
risk
includes
advantageous legal developments.
the
forfeiture
of
later
To say that a later change in
law should automatically make a plea agreement or, as here, a
lawful prior proceeding invalid is to render law provisional and
judgment advisory, good only until the inevitable next round.
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Once we recognize that a favorable change in law does not
automatically render prior lawfully imposed sentences unjust, it
becomes
clear
correcting
why
collateral
sentencing
assistance-of-counsel
review
errors.
claims,
is
a
Unlike
sentencing
poor
with
issues
forum
for
ineffectivecan
usually,
even if not always, be effectively fixed on direct appeal.
The
majority’s invocation of the “rigor” with which appellate courts
review
Maj.
sentences
Op.
at
undermine
a
27;
on
see
“basic
direct
also
appeal
only
id.
23.
at
distinction
supports
It
between
this
does
direct
point.
nothing
review
to
and
collateral review”: that “an error that may justify reversal on
direct appeal will not necessarily support a collateral attack
on a final judgment.”
Addonizio, 442 U.S. at 184.
C.
In addition to being conceptually unsound, the majority’s
holding that Whiteside’s claim is cognizable under § 2255 leads
it to misread Supreme Court precedent and run roughshod over our
own.
The
Supreme
Court
cases
upon
Whiteside rely are in another room.
which
the
majority
and
In Peugh v. United States,
the Court held that the Ex Post Facto Clause forbids a district
court
from
using
Sentencing
Guidelines
promulgated
after
the
original offense to sentence a defendant if the later Guidelines
increase the recommended sentencing range.
50
133 S. Ct. 2072,
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2084 (2013).
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But Peugh is readily distinguishable.
deals with constitutional error.
appeal.
First, it
Second, it deals with direct
The standard for ex post facto challenges articulated
in a case like
Peugh –- that the change in law create merely “a
‘significant risk’ of a higher sentence,” Peugh, 133 S. Ct. at
2088 -- is substantially less demanding than the requirement of
a fundamental defect leading to a miscarriage of justice for
collateral
attack
on
non-constitutional
errors.
And
third,
there is no indication that the Supreme Court intended Peugh’s
holding to apply retroactively to already-final sentences such
as Whiteside’s.
See Hawkins, 724 F.3d at 916-18.
Johnson v. United States, 544 U.S. 295 (2005), similarly
fails
to
support
Whiteside’s
position.
§ 2255’s one-year statute of limitations.
Court
stated
that
it
shared
the
Johnson
dealt
with
There, the Supreme
petitioner’s
“preliminary
assumption that if he filed his § 2255 motion in time, he is
entitled to federal resentencing now that the State has vacated
one of the judgments supporting his enhanced sentence.”
302-03.
Id. at
This assumption was irrelevant to the disposition of
the case, however, since the Court held that the § 2255 petition
at
issue
was
time-barred.
Id.
at
311.
Furthermore,
the
assumption was made in the context of the vacatur of predicate
state convictions; here, there is no question that Whiteside’s
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state convictions are still valid and that the district court
could, would, and should consider them on resentencing.
Finally Davis v. United States, 417 U.S. 333 (1974), is
inapposite to this case.
§ 2255
could
intervening
be
used
change
in
In Davis, the Supreme Court held that
to
challenge
law
rendered
a
the
conviction
act
upon
when
which
an
the
conviction was based one “that the law does not make criminal.”
417 U.S. at 346.
that
such
a
miscarriage
circumstances’
Davis held: “There can be no room for doubt
circumstance
of
‘inherently
justice’
that
justify
and
results
in
‘present[s]
collateral
Id. at 346-47 (alteration in original).
relief
a
complete
exceptional
under
§ 2255.”
But nothing in Davis
suggests that its holding should extend to cases where, as here,
the intervening change in law did not undermine the underlying
convictions.
The difference is one of night and day.
To say as
the majority does that “this case does not present exactly the
kind of error” at issue in Davis is an understatement, to put it
mildly.
Maj. Op. at 24.
If the majority opinion distorts Supreme Court precedent,
it tramples our own.
Whiteside states that “[d]eciding this
case requires the Court to break new ground in this Circuit,” a
euphemistic way of inviting us to disregard our prior precedent.
Appellant’s Reply Br. at 27.
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Sadly, the invitation has been accepted.
States
v.
Pregent,
“[b]arring
We held in United
extraordinary
circumstances
. . . , an error in the application of the Sentencing Guidelines
cannot be raised in a § 2255 proceeding.”
190 F.3d at 283-84;
see also United States v. Goines, 357 F.3d 469, 477 (4th Cir.
2004)
(“[Guidelines]
§ 2255
claims
proceedings.”);
ordinarily
Mikalajunas,
are
186
not
cognizable
F.3d
at
496
in
(“[A]
misapplication of the [Sentencing Guidelines] typically does not
constitute a miscarriage of justice.”).
These cases all came
from the era in which the Sentencing Guidelines were virtually
mandatory.
present
Their teachings are all the more compelling in the
advisory
Guidelines
period.
For
if
Guidelines
calculations were not cognizable on collateral review in their
all-but-mandatory form prior to Booker, they certainly cannot be
cognizable in their new advisory status.
Moreover, the holdings in the above cases stem from the
fact that § 2255 is designed for “cases in which ‘the sentence
was in excess of the maximum authorized by law.’” Pregent, 190
F.3d
at
284
Whiteside’s
(quoting
career-offender
statutory maximum.
Powell,
28
because
U.S.C.
§ 2255(a)).
designation
did
Here,
not
however,
increase
his
As Judge King recognized in United States v.
career-offender
designations
do
not
lead
to
“sentences exceeding the applicable statutory maximum,” they are
thus not challengeable under § 2255.
53
691 F.3d 554, 563 n.2 (4th
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Cir. 2012) (King, J., dissenting in part and concurring in the
judgment in part).
Similarly, in United States v. Pettiford, 612 F.3d 270 (4th
Cir. 2010), we ruled that there was no miscarriage of justice,
and
thus
no
challenging
underlying
remedy
his
available
under
career-offender
predicate
§ 2255,
sentence
convictions
had
for
when
been
a
prisoner
two
vacated
of
the
but
the
career-offender designation was still supported by the remaining
convictions.
In that case, as here, the district court could
have imposed an identical sentence following vacatur.
Thus,
there was “no evidence that [the petitioner’s] sentencing was
constitutionally
defective
or
flawed
in
a
fundamental
way.”
Pettiford, 612 F.3d at 278.
II.
In addition to being non-cognizable, Whiteside’s claim for
relief is time-barred.
28 U.S.C. § 2255(f) provides for a one-
year statute of limitations that is triggered by one of four
conditions, whichever occurs latest:
(1) the date on
becomes final;
which
the
judgment
of
conviction
(2) the date on which the impediment to making
motion created by governmental action in violation
the Constitution or laws of the United States
removed, if the movant was prevented from making
motion by such governmental action;
a
of
is
a
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
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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.
Whiteside contends that his claim fits under (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 is timely under this theory, since he filed
less than a year after Simmons was handed down.
majority
does
explanation
illustrate
not
of
the
adopt
the
many
Whiteside’s
statutory
ways
in
statutory
argument,
an
is
scheme
which
Although the
necessary
to
the
still
majority’s
equitable
holding negates it.
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 a state conviction which was later
vacated.
Following
vacatur,
Johnson
sought
federal
post-
conviction relief, contending that his enhanced sentence was no
longer valid.
year
before
Johnson’s conviction had become final more than a
his
§ 2255
petition
was
filed,
but
the
Court
concluded that the vacatur qualified as a new fact for purposes
55
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of (f)(4).
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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 (citation omitted).
Johnson
does
not
govern
Whiteside’s
represented a change of law, not fact.
claim.
Simmons
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 (6th Cir. 2013); Sanchez v. United States, 318 F. App’x 801,
804
&
n.6
(11th
Cir.
2009)
(unpublished
per
curiam);
Lo
v.
Endicott, 506 F.3d 572, 575 (7th Cir. 2007); E.J.R.E. v. United
States, 453 F.3d 1094, 1098 (8th Cir. 2006); Shannon v. Newland,
410 F.3d 1083, 1088-89 (9th Cir. 2005); 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 outside
(f)(3)).
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
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disproved.”
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E.J.R.E.,
453
Pg: 57 of 69
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.”
at 1089.
Shannon, 410 F.3d
Indeed, if this change in law is a “fact,” then what
would not be?
Instead of altering the factual landscape, Simmons merely
announced a generally applicable legal rule.
But a decision
“establishing an abstract proposition of law arguably helpful to
the
petitioner’s
claim
does
predicate’ for that claim.”
not
Id.
constitute
the
‘factual
Decisions that update the
legal significance of certain facts without modifying them do
not qualify under (f)(4).
vacatur
decision,
it
Simmons did precisely this: unlike a
altered
the
legal
significance
of
Whiteside’s prior convictions without amending the convictions
themselves.
2000)
(“Time
diligence
See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
begins
could
when
discover)
the
the
prisoner
important
knows
facts,
(or
not
through
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
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right
“newly
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recognized
by
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the
Supreme
Court
and
made
retroactively applicable to cases on collateral review.”
U.S.C. § 2255(f)(3).
28
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).
suggest,
as
[the
petitioner]
See Lo, 506 F.3d at 575.
does,
that
any
decision
“To
by
any
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” (f)(3) -- not (f)(4).
Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th Cir. 2011)
(en
banc)
Whiteside
(internal
does
not
quotation
even
attempt
marks
to
omitted).
argue
satisfies the requirements specified in (f)(3).
58
that
Notably,
his
claim
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B.
Recognizing
the
speciousness
of
his
statutory
argument,
Whiteside asserts in the alternative -- in an argument embraced
by the majority -- that 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
against the party and gross injustice would result.”
Lee,
339
F.3d
Hutchinson,
238,
209
246
F.3d
(4th
325,
Cir.
330
2003)
(4th
(quoting
Cir.
2000))
period
Rouse v.
Harris
v.
(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
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within the limitations period at all.
1090.
Although
Simmons
plainly
See Shannon, 410 F.3d at
made
a
collateral
attack
on
Whiteside’s sentence more plausible, nothing prevented Whiteside
from
filing
limitations.
his
petition
within
the
one-year
statute
of
See E.J.R.E., 453 F.3d at 1098.
This court’s decision in Minter v. Beck confirms this line
of reasoning.
In that case, as here, the defendant’s claim
originally seemed foreclosed by extant precedent.
issuance
of
collaterally
a
favorable
attack
his
equivalent to (f)(2).
decision,
by
decision,
sentence,
however,
After the
he
invoking
a
sought
to
provision
Minter contended that the newly issued
nullifying
the
unfavorable
precedent
that
had
previously barred his claim, served to remove an “impediment” to
filing.
After
rejecting
this
argument,
equitable tolling was inappropriate.
67.
The
court
reasoned
that
the
court
held
that
Minter, 230 F.3d at 666-
unfavorable
precedent
may
have
rendered a timely claim unsuccessful, but did not actually bar
Minter
from
making
the
attempt.
As
the
court
observed,
“futility . . . is not a valid justification for filing an
untimely” petition.
Id. at 666.
this central holding.
Nothing in Holland undermines
The majority’s Orwellian declaration that
Minter establishes a “bright-line rule” that must be applied on
a “case-by-case basis” is contradictory at best, and scornful of
precedent at worst.
Maj. Op. at 12.
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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.
Indeed, any
such allegation would be frivolous given the many defendants who
filed
suits
prior
to
Simmons
asserting
the
exact
same
substantive claim that Whiteside now raises, including of course
Simmons himself.
App’x
343
(4th
See, e.g., United States v. Brandon, 376 F.
Cir.
2010)
(unpublished
per
curiam);
United
States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (unpublished
per curiam); United States v. Simmons, 340 F. App’x 141 (4th
Cir. 2009) (unpublished per curiam), 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),
tolling
both
should
strongly
not
be
foreshadowed
applied
where,
Simmons.
Equitable
as
the
here,
only
impediment to timely filing was the discouragement felt by the
petitioner on calculating his odds of success.
Furthermore,
“gross
Whiteside
injustice”
would
has
result
failed
should
to
this
demonstrate
court
that
deny
his
request for equitable tolling and find his claim time-barred.
See
Green
(internal
v.
Johnson,
quotation
515
marks
F.3d
290,
omitted).
61
As
304
(4th
explained
Cir.
2008)
above
and
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contrary
to
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the
majority’s
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assertion,
see
Maj.
Op.
at
21,
Whiteside’s petition for collateral relief fails on the merits
for the simple reason that the claimed sentencing error involved
nothing more than a miscalculation of the advisory Guidelines
range.
Despite Whiteside’s contentions to the contrary, this
type of error does not represent “a fundamental defect which
inherently results in a complete miscarriage of justice.”
v.
United
States,
368
U.S.
424,
428
(1962).
For
Hill
similar
reasons, a dismissal of Whiteside’s claims on procedural grounds
also falls short of constituting a “gross injustice.”
Finally,
as
several
circuits
have
noted,
it
is
quite
improper to use the doctrine of equitable tolling to circumvent
the express limitations contained in § 2255.
F.3d at 576.
obstacles
Equitable tolling is instead intended to address
to
provisions.
See, e.g., Lo, 506
filing
not
otherwise
governed
Owens, 235 F.3d at 360.
by
the
statutory
In this case, Whiteside’s
statutory and equitable arguments both stem from the change in
law precipitated by Simmons.
Changes in law are governed by
(f)(3),
of
fails
which
to
lays
satisfy.
out
To
a
set
permit
requirements
Whiteside
to
that
“succeed
Whiteside
on
this
recharacterized argument” would thus “usurp the congressionally
mandated limits on habeas petitions.”
In
this
case,
Simmons
came
Whiteside’s conviction became final.
62
Lo, 506 F.3d at 576.
down
roughly
a
year
after
That may seem a short time
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to the majority, but its equitable reasoning applies equally to
a long history of three, five, or even ten years, or whenever a
change in circuit decisional law or Guidelines interpretation
may
appear.
This
sort
of
reasoning
makes
a
mockery
of
Congress’s desire to have post-conviction petitions filed when
the evidence is not stale or missing altogether.
III.
It
has
expanded
that
disregarded.
finality
been
collateral
convictions.
value
often
is
noted
review
that
is
one
the
of
the
casualties
finality
of
of
criminal
The majority pays the kind of lip service to this
is
typical
when
a
principle
See Maj. Op. at 29.
an
empty
and
hollow
is
about
to
be
In the majority’s eyes,
concept
with
no
comparable to a defendant’s rights to relitigation.
meaning
But the
evisceration of the finality principles imposes costs, and many
of these costs are born by the judicial system.
See McCleskey
v. Zant, 499 U.S. 467, 491 (1991); United States v. Addonizio,
442 U.S. 178, 184 n.11 (1979); Henry J. Friendly, Is Innocence
Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 148-49 (1970).
As the Seventh Circuit emphasized in Hawkins, collateral
review of years-old proceedings ties up prosecutorial resources
that could otherwise be used to promptly resolve new criminal
cases.
See Hawkins v. United States, 706 F.3d 820, 824 (7th
63
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Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915 (7th
Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24, 2014)
(No. 13-538).
the
time
Furthermore, post-conviction petitioners occupy
of
defense
counsel
who
might
otherwise
turn
their
valuable but finite energies to a defense when it matters most:
at trial.
And the ultimate victims of this burdened system are
other litigants, civil and criminal, who find the courthouse
door
clogged
by
the
ever-rising
number
of
post-conviction
petitions.
By undermining finality, expansive collateral review also
harms our criminal-justice system more broadly.
Because endless
collateral review keeps convictions and sentences in legal limbo
and
makes
actually
it
be
more
doubtful
imposed,
criminal law.
it
that
announced
eviscerates
the
punishment
deterrent
will
effect
of
See Teague v. Lane, 489 U.S. 288, 309 (1989)
(plurality opinion).
For similar reasons, it reduces public
confidence in our criminal-justice system, see Addonizio, 442
U.S. at 184 n.11.
judging
in
recognized
judge’s
the
first
long
sense
And it threatens to diminish the quality of
ago,
of
instance,
there
is
since,
“nothing
responsibility,
of
as
Professor
subversive
more
the
Bator
of
inner
a
subjective
conscientiousness which is so essential a part of the difficult
and
subtle
acceptance
art
of
the
of
judging
notion
well,
that
all
64
than
the
an
shots
indiscriminate
will
always
be
Appeal: 13-7152
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Filed: 04/08/2014
called by someone else.”
Pg: 65 of 69
Paul M. Bator, Finality in Criminal
Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.
Rev. 441, 451 (1963).
Ultimately,
collateral
error
repetitious
litigation
under
correction
“disparages
the
the
entire
guise
of
criminal
justice system,” McCleksey, 499 U.S. at 492, by undermining a
key justification for the existence of final judgments: to give
all interested parties –- defendants, victims, and society alike
-- closure and a chance to move on and look forward rather than
back.
As Justice Harlan put it:
At some point, the criminal process, if it is to
function at all, must turn its attention from whether
a man ought properly to be incarcerated to how he is
to be treated once convicted.
If law, criminal or
otherwise, is worth having and enforcing, it must at
some time provide a definitive answer to the question
litigants present or else it never provides an answer
at all.
Surely it is an unpleasant task to strip a
man of his freedom and subject him to institutional
restraints. But this does not mean that in so doing,
we should always be halting or tentative. No one, not
criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment
providing a man shall tentatively go to jail today,
but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation on
issues already resolved.
Mackey v. United States, 401 U.S. 667, 690-91 (1971) (Harlan,
J., concurring in the judgments in part and dissenting in part).
At the time Justice Jackson lamented the flood of postconviction petitions in Brown v. Allen, the federal courts heard
approximately 500 state-prisoner habeas petitions a year.
65
344
Appeal: 13-7152
Doc: 43
U.S.
443,
536
result).
In
annually,
of
succeeded.
Much
Filed: 04/08/2014
and
n.8
(1953)
recent
which
(Jackson,
years,
fewer
Pg: 66 of 69
they
J.,
concurring
heard
one-half
than
have
of
close
one
in
to
the
20,000
percent
have
Joseph L. Hoffmann & Nancy J. King, Justice, Too
Too
Expensive,
N.Y.
Times,
Apr.
16,
2011,
at
WK8.
Ultimately, “no one in a position to observe the functioning of
our byzantine federal-habeas system can believe it an efficient
device for separating the truly deserving from the multitude of
prisoners pressing false claims.”
McQuiggin v. Perkins, 133 S.
Ct. 1924, 1942-43 (2013) (Scalia, J., dissenting).
Reasonable
between
people
may
and
error
finality
disagree
over
correction,
the
but
proper
it
is
tradeoff
not
up
to
judges to supplant Congress’s judgment on this point with their
own.
is
Above some constitutional crossbar, which most would agree
easily
cleared
by
our
current
system,
Congress
alone
possesses the power and responsibility to define the contours of
federal collateral review.
proper
focus
of
such
And by Congress’s own terms, the
review
is
on
whether,
in
the
direct
proceedings, there was a “violation of the Constitution or laws
of
the
United
Whiteside’s
undisputed
States.”
sentence
law
in
was
force
28
U.S.C.
§ 2255(a).
properly
imposed
at
time,
the
violation.
66
according
there
was
Because
to
no
the
such
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When the majority expands the scope of § 2255 in excess of
what Congress intended, or excuses Whiteside’s untimely petition
in clear violation of statutory requirements, it augments its
own
power
federal
at
Congress’s
expense.
post-conviction
As
review,
is
often
the
dissatisfaction
case
with
in
the
underlying provisions of the criminal law fuels expansion of
what
should
attack.
be
a
selectively
utilized
device
for
collateral
Whatever problems may exist in our substantive criminal
and sentencing regimes, reform is properly committed to Congress
via
its
constitutional
authority,
not
to
judges
through
the
backdoor of collateral review.
Seldom has a court broken more china en route to a result.
Certificates
statutes
of
disregarded.
of
appealability,
limitation,
doctrines
pertinent
of
retroactivity,
precedents
Law is relegated to the margins.
are
all
All that need be
staked is one’s own claim to sole possession of the “truth” and
“right.”
Instead of respecting the limitations that Congress,
the Supreme Court, and our precedent have imposed on § 2255, the
majority conflates claims that are cognizable only on direct
appeal with the sort of fundamental defects that represent the
proper focus of § 2255.
The Supreme Court has warned against an
approach under which
the writ would become a delayed motion for a new
trial, renewed from time to time as the legal climate
changed. . . .
Wise judicial administration of the
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federal courts counsels against such [a] course, at
least where the error does not trench on any
constitutional rights of defendants nor involve the
jurisdiction of the trial court.
Sunal v. Large, 332 U.S. 174, 182 (1947).
The
majority’s
approach
transforming its nature.
devalues
collateral
review
by
The Great Writ, upon which § 2255 was
modeled, has earned its name not only because of its power, but
because, when used properly, it is used sparingly and to correct
certain fundamental infractions.
post-conviction
intended
role
violation
of
review
at
a
the
court’s
Today, the majority renders
unrecognizable
Founding:
to
“jurisdiction
Executive without proper legal process.”
as
compared
challenge
or
to
sentences
detention
by
its
in
the
McCleskey, 499 U.S. at
478 (internal citation omitted); see also Swain v. Pressley, 430
U.S. 372, 385-86 (1977) (Burger, C.J., concurring in part and
concurring in the judgment).
The Great Writ stands for the fundamental proposition that
government too is subject to the given law.
Here the government
observed the law; it is, sadly, a court that accords no meaning
to that fact.
How is it that requiring someone to serve a
sentence lawfully imposed and constitutionally rendered becomes
a “plain injustice” and a “fundamental unfairness”?
29.
This
path
vindicates
no
fundamental
Maj. Op. at
liberty.
It
only
transforms collateral review into a double of direct review, a
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redundant mechanism for routine error correction, deployed to
unsettle
sentences
that
were
imposed
years
earlier
under
governing law, in accordance with unexceptionable procedure, and
by a sovereign acting in accordance with its sovereign duty to
protect citizens from those who repeatedly violate its criminal
laws.
For the aforementioned reasons, and because I view this
decision as wholly wrong and deeply damaging to our criminaljustice system, I respectfully dissent.
69
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