Deangelo Whiteside v. US

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cr-00069-MR-1,1:12-cv-00118-MR. [999497109]. [13-7152]

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ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7152

DEANGELO MARQUIS WHITESIDE,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

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

Argued:

September 18, 2014

Decided:

December 19, 2014

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

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

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,

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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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WILKINSON, Circuit Judge:
Deangelo Whiteside pled guilty to a charge of possession
with intent to distribute at least 50 grams of cocaine base,
pursuant

to

21

U.S.C.

§

841(a)(1).

Based

upon

his

criminal

record, he received the career offender enhancement under the
United States Sentencing Guidelines and was sentenced to 210
months imprisonment. Whiteside now raises various claims on a 28
U.S.C.

§

2255

petition

arguing

that

his

sentence

should

be

vacated in light of United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). In accordance with the relevant statutes,
and in reliance upon Supreme Court and circuit precedent, we
hold that the filing of the § 2255 petition was untimely, and we
therefore affirm the district court’s dismissal of the petition.
We decline to address the other claims raised by the petitioner.
I.
Starting in 2007, various drug dealers in Asheville, North
Carolina,

began

identifying

Deangelo

Marquis

Whiteside

as

a

wholesale crack cocaine distributor in the area. Following an
investigation, Whiteside was charged on July 22, 2009 in the
Western District of North Carolina with one count of possession
with intent to distribute more than 50 grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1). Prior to his plea agreement,
the government notified Whiteside that it intended to pursue an
enhanced penalty under 21 U.S.C. § 851 based on his 2002 North
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Carolina conviction for possession with intent to manufacture,
sell, or deliver a controlled substance.
The

presentence

report

determined

that

petitioner

was

accountable for 1951.9 net grams of powder cocaine and 468.3 net
grams

of

quantity

cocaine
of

base.

drugs

Under

would

21

have

U.S.C.

subjected

§

841(b)(1)(A),

him

to

a

this

mandatory

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

lengthy

criminal

record,

including

numerous

controlled-substances offenses, assault with a deadly weapon on
a government officer, and additional counts of assault, hit and
run, and resisting a public officer, which, independent of any
career

offender

enhancement,

established

a

criminal

history

category of V. See JA at 137. Whiteside did, however, qualify
for the career offender sentencing enhancement under § 4B1.1 of
the

United

States

conviction

and

possession

with

Sentencing

another
intent

1999
to

Guidelines
North

based

Carolina

manufacture,

on

the

conviction

sell,

and

2002
for

deliver

cocaine.
The presentence report, accepted by the district court,
recommended an advisory guidelines range of 262 to 327 months
based on the offense conduct, Whiteside’s criminal record, and a
three-level
government

reduction
made

a

for

motion

acceptance
under

of

§ 5K1.1

responsibility.
of

the

The

Sentencing

Guidelines for a downward departure for substantial assistance,
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which the court accepted.

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In light of the motion and after full

consideration of the sentencing factors set forth in 18 U.S.C.
§ 3553(a), the district judge ultimately sentenced Whiteside to
210 months. The court entered judgment on July 20, 2010, and
petitioner did not pursue a direct appeal. His conviction became
final on August 3, 2010, when his time for appeal expired.
On May 18, 2012, petitioner filed a motion under 28 U.S.C.
§ 2255

to

vacate

his

sentence

in

light

of

United

States

v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). He argued that
the sentence should be vacated because after Simmons his prior
drug

offenses

would

no

longer

qualify

as

predicate

felony

convictions for purposes of sentencing enhancements, including
the career offender enhancement under § 4B1.1 of the guidelines.
See Appellant’s Br. at 5. Assuming he would again receive a
three-level

reduction

substantial

assistance

for

acceptance

downward

of

responsibility

departure,

Whiteside

and

a

contends

that, if resentenced, he would be subject to a markedly lower
advisory guidelines range. Id. The government responds that the
district court “possessed both the statutory authority and the
discretion to impose the sentence it imposed, and were this case
remanded and [p]etitioner resentenced, the district court could
properly impose the same sentence, even without application of
the career-offender enhancement.” Gov’t Br. at 47.

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The

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threshold

issue

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before

this

court

concerns

the

timeliness of Whiteside’s § 2255 petition. The district court
for the Western District of North Carolina denied petitioner’s
motion as untimely and declined to apply equitable tolling. A
divided panel of this court vacated the sentence and remanded
for resentencing, holding that the statutory limitations period
should

be

otherwise

equitably

tolled

cognizable

on

and

that

collateral

Whiteside’s

review.

See

claims

were

Whiteside

v.

United States, 748 F.3d 541 (4th Cir. 2014). A majority of the
active judges in the circuit voted to rehear the case en banc.
See Order Granting Rehearing En Banc of July 10, 2014. We now
hold

that

the

petition

is

untimely

and

affirm

the

district

court’s dismissal of it.
II.
Petitions for collateral relief filed pursuant to 28 U.S.C.
§ 2255 are subject to a one-year statute of limitations governed
by § 2255(f). 1

The statute provides that the one-year clock is

triggered by one of four conditions, whichever occurs latest:
(1) the date on
becomes final;

which

the

judgment

of

conviction

(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
1

This discussion is modified and adapted from section II of
the dissent to the panel’s original decision in this case. See
748 F.3d 541, 556 (4th Cir. 2014).
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removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
A.
Petitioner

contends

that

his

claim

falls

under

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

Cir.

2011)

(en

banc),

purposes of that provision.

qualified

as

a

new

“fact”

for

Whiteside’s suit would be timely

under this theory, since he filed his petition less than a year
after Simmons was handed down.
Whiteside

grounds

his

argument

on

the

Supreme

Court’s

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

In

Johnson, the defendant’s sentence in the original proceeding was
enhanced on the basis of two state convictions, one of which was
later vacated.

Following vacatur, Johnson sought federal post-

conviction relief, contending that his enhanced sentence was no
longer valid.
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

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of subsection (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 (internal 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,

580-83 (6th Cir. 2013) (finding the petition untimely where an
intervening change in the law was insufficient to render the
petitioner actually innocent); Lo v. Endicott, 506 F.3d 572, 575
(7th Cir. 2007) (finding that an intervening change in law was
not a new factual predicate sufficient to reset the statute of
limitations period under AEDPA); E.J.R.E. v. United States, 453
F.3d 1094, 1098 (8th Cir. 2006) (rejecting an intervening change
in

law

as

insufficient

to

reset

the

statute

of

limitations

period under AEDPA and declining to equitably toll the statute
of limitations); Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th
Cir. 2005) (same); see also Minter v. Beck, 230 F.3d 663, 666
(4th Cir. 2000) (rejecting, in a similar context, defendant’s
attempt to invoke a change in law as an impediment to filing a

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habeas

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petition

sufficient

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to

toll

AEDPA’s

statute

of

limitations). 2
Contrary to the vacatur at issue in Johnson, Simmons did
not directly alter Whiteside’s legal status as a prior state
offender.

See Lo, 506 F.3d at 575.

A conviction is a fact for

sentencing purposes, but a relevant legal rule is not.

Simmons,

“unlike a predicate conviction, is a ruling exclusively within
the domain of the courts and is incapable of being proved or
disproved.”

E.J.R.E.,

453

F.3d

at

1098.

This

point

is

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

ask

a

jury

to

decide

whether

a

judicial

decision

had

indeed changed [the] law in the relevant way, nor would the
parties introduce evidence on the question.” Shannon, 410 F.3d
at 1089.

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

would not be?
Instead
announced

a

of

altering

generally

the

factual

applicable

legal

landscape,
rule.

A

Simmons
decision

“establishing an abstract proposition of law arguably helpful to
the

petitioner’s

claim

does

predicate’ for that claim.”
significance

of

certain

not

constitute

the

‘factual

Id. Decisions that change the legal

facts

without

2

modifying

them

do

not

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

under

vacatur

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(f)(4).

decision,

it

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Simmons

did

altered

precisely

the

legal

this:

unlike

significance

a
of

Whiteside’s prior convictions without amending the convictions
themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)
(“Time
could

begins

when

discover)

the

the

prisoner

important

knows

facts,

(or
not

through
when

diligence

the

prisoner

recognizes their legal significance.”); see also United States
v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).
Whiteside’s (f)(4) argument fails for the additional reason
that it would effectively nullify (f)(3), which provides for
tolling in instances where the defendant’s claim is founded on a
right

“newly

recognized

by

the

Supreme

Court

and

retroactively applicable to cases on collateral review.”
U.S.C. § 2255(f)(3).

made
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,

10

that

any

decision

by

“To
any

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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

(f)(4).
Cir.

(en

words,

limitations
not

in

accordance

with

§

2255(f)(3)”

--

not

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

2011)

other

only

even

banc)

(internal

Whiteside’s

virtually
attempt

view

would

without

to

quotation

limits.

argue

that

marks

render

In

statute

of

the

Notably,

his

omitted).

claim

Whiteside

does

satisfies

the

requirements specified in (f)(3).
B.
Whiteside asserts in the alternative that if we reject his
statutory

argument,

equitably tolled.

the

statute

of

limitations

should

be

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.”
quotation

Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
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.”
11

period

Rouse v.

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

Hutchinson,

209

F.3d

325,

330

(4th

Cir.

2000))

(internal

quotation marks omitted); see also United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004).
Whiteside claims that he was prevented from timely filing
by the unfavorable precedent that would have governed his claim
had

he

sued

prior

to

Simmons.

The

standard

announced

in

Holland, however, focuses not on whether unfavorable precedent
would have rendered a timely claim futile, but on whether a
factor beyond the defendant’s control prevented him from filing
within the limitations period at all.
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.
The

his

petition

within

the

one-year

statute

of

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

Supreme

Court

has

made

clear

that

alleged

futility

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

collateral

review.

As

the

Court

emphasized

in

Bousley

v.

United States, “futility cannot constitute cause if it means
simply that a claim was unacceptable to that particular court at
that particular time.”

523 U.S. 614, 623 (1998) (quoting Engle

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

omitted).

Every

case

“presents

a

myriad

of

possible

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

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petitioner

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to

raise

those

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claims

that

might

possibly

have

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

claim;”

otherwise

defaulted. Id. at 130.

the

claim

is

considered

procedurally

It would be anomalous to contend that

futility -- something the Supreme Court has clearly said cannot
serve as cause for procedural default – does nonetheless serve
as cause for failure to timely file a § 2255 petition. For the
law of procedural default and that of equitable tolling address
the same basic question of when failures to raise claims are to
be deemed excusable.
This court’s decision in Minter v. Beck confirms this line
of reasoning. 230 F.3d 663 (4th Cir. 2000). In that case, as
here,

the

defendant’s

extant precedent.

claim

originally

seemed

foreclosed

by

After the issuance of a favorable decision,

Minter sought to collaterally attack his sentence, invoking a
provision equivalent to § 2255(f)(2).

He contended that the

newly issued decision, by nullifying the unfavorable precedent
that

had

previously

barred

“impediment” to filing.

his

claim,

served

to

remove

an

After rejecting this argument, we held

that equitable tolling was inappropriate.

Minter, 230 F.3d at

666-67. We reasoned that unfavorable precedent may have rendered
a timely claim unsuccessful but did not operate to bar Minter
from making the attempt.

This court echoed the Supreme Court in

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saying that “futility . . . is not a valid justification for
filing an untimely” petition.

Id. at 666.

Nothing in Holland undermines these holdings.
Court

there

cautioned

against

a

“too

Though the

rigid”

approach

to

equitable tolling, it nonetheless made clear that federal courts
were

to

invoke

the

doctrine

only

in

cases

of

truly

“extraordinary circumstances.” Holland, 560 U.S. at 634, 649. In
that case, petitioner was the victim of extraordinary negligence
by his attorney, who not only failed to file his federal habeas
petition in a timely fashion, but also failed to communicate
with petitioner, failed to inform him that the Florida Supreme
Court

had

decided

his

case,

and

ignored

his

many

letters

repeatedly emphasizing the importance of preserving his claims
for federal review. Id. at 652. Furthermore, the Florida courts
repeatedly denied petitioner’s attempts to file pro se or have
his attorney removed for this record of ineptitude. Id. at 653.
But those facts are far afield from the case at bar, which
involves unimpeded access to federal court for claims brought
there all the time.
Tellingly, Whiteside makes no allegation that he was unable
to file in a timely fashion -- only that doing so would probably
have been unsuccessful in light of extant case law.

But that

allegation is manifestly insubstantial given the many defendants
who

filed

suits

prior

to

Simmons
14

asserting

the

exact

same

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substantive

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claim

that

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Whiteside

course, Simmons himself.

now

raises,

including,

of

See, e.g., United States v. Brandon,

376 F. App’x 343 (4th Cir. 2010) (per curiam) (unpublished);
United States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (per
curiam) (unpublished); United States v. Simmons, 340 F. App’x
141 (4th Cir. 2009) (per curiam) (unpublished), vacated, 130 S.
Ct. 3455 (2010).

These claims were not entirely meritless even

under then-existing precedent: the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth
Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th
Cir. 2008), strongly foreshadowed Simmons.

Equitable tolling

thus may not be applied where, as here, the only impediment to
timely filing was the discouragement felt by petitioner when
calculating his odds of success.
III.
Whiteside insists, however, that the disparity in circuit
law between then and now justifies setting aside the limitations
period.
nature

That
of

his

contention,
equitable

however,

overlooks

tolling

arguments.

the

open-ended

Roughly

80,000

persons are sentenced by federal district courts each year, and
“[p]recedential decisions come pouring out of the federal courts
of appeal and the Supreme Court” routinely. Hawkins v. United
States, 706 F.3d 820, 824 (7th Cir. 2013). If every favorable
precedential decision could become, as Whiteside would have it,
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“a

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ticket

to

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being

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resentenced,”

id.,

the

criminal

justice

system would need to “continually . . . marshal resources in
order to keep in prison defendants whose trials and appeals [and
sentences]

conformed

to

then-existing

constitutional

[and

statutory] standards.” Id. (quoting Teague v. Lane, 489 U.S.
288,

310

(1989)

(plurality

opinion))

(internal

quotations

omitted) (brackets in original).
In other words, if we accepted Whiteside’s view, we would
be on the way to holding that a myriad of substantive changes in
law past the point of finality would suffice to equitably toll
the statute of limitations in § 2255(f) whenever it might be
conjectured that past and future outcomes would be different.
The

implications

of

any

such

argument

foreshadow

a

tectonic

shift of resources from trial and direct appeal to repetitive
rounds of collateral review. While resentencing is generally not
as

significant

an

encumbrance

as

a

retrial,

“the

cumulative

burden of resentencing in a great many stale cases could be
considerable.” Id. That, of course, is the precise prospect a
statute

of

limitations

is

enacted

to

prevent.

As

several

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

tolling

contained in § 2255.

to

circumvent

the

express

limitations

See, e.g., Lo, 506 F.3d at 576. A step of

this magnitude would require either an act of Congress or a

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ruling from the Supreme Court, neither of which has come to
pass.
Whiteside’s conviction became final on August 3, 2010. At
the time, he was sentenced under the sentencing scheme outlined
in United States v. Harp. See 406 F.3d 242 (4th Cir. 2005).

On

August 17, 2011, the court, sitting en banc, reversed the panel
decision in Simmons, expressly overruling Harp and this court’s
treatment

of

predicate

convictions

for

career

offender

enhancements. See Simmons, 649 F.3d 237. Whiteside did not file
his motion to vacate his sentence in light of Simmons until May
18, 2012, almost two years after his conviction became final.
But the relevant limitations period under § 2255(f) is one year
after the conviction is final, not one year from a decision that
effectuates a change in circuit law.
To appreciate the point, suppose three, five, or ten years
had passed between a conviction becoming final and the time when
some

change

in

circuit

law

occurred.

If

we

were

to

adopt

Whiteside’s argument, whenever there is a change in circuit law
of sufficient magnitude (whatever that is), a petitioner would
have a year to file after the change, even if many years had
passed since the conviction became final. That simply vitiates
the point of statutes of limitations in general and this one in
particular, namely that the relevant evidence not be stale or
missing.

Even

changes

in

law

must
17

be

applied

to

facts,

and

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statutes

of

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limitation

reduce

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the

risk

of

claims

being

less

accurately litigated long after the fact.
It bears briefly summarizing just how much Whiteside would
trench

upon

equitable

the

prerogatives

tolling

circumvent

in

Congress’s

these
highly

of

other

institutions

circumstances.
refined

statute

to

Petitioner
of

find
would

limitations,

which specifically sets forth in § 2255(f)(3) when tolling would
lie as a result of a change in law, a criterion which petitioner
has manifestly failed to satisfy. Petitioner would further have
us disregard the Supreme Court’s pointed language in Bousley and
Engle

and

its

historic

limitation

of

equitable

tolling

to

extraordinary circumstances beyond a petitioner’s control. See
Holland v. Florida, 560 U.S. 631 (2010). In disregarding the
prerogatives of other institutions, we would invite additional
collateral

attacks

long

after

convictions

were

final

and

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

of

possibility

limitations
that

some

contemplates
favorable

by

definition

development

after

the
the

limitations period might occur. The legislative branch of our
government is entrusted to set the balance between the ends of
equity and the values safeguarded by according final judgments
due effect. It is not our office to reset or recalibrate that
balance in the case at bar. The judgment of the district court

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must accordingly be affirmed because the petition herein was not
timely filed. 3
AFFIRMED

3

The court wishes to express its appreciation both to Ann
Hester and Amy Ray for the fine quality of their advocacy in
this case.
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GREGORY, Circuit Judge,
Circuit Judge, joins:

Pg: 20 of 31

dissenting,

with

The majority today makes a choice.

whom

DAVIS,

Senior

It has chosen not to

exercise its powers in equity – which the Supreme Court recently
affirmed

–

and

to

allow

a

against Deangelo Whiteside.
been

erroneously

gross

injustice

to

be

committed

Nobody disputes that Whiteside has

designated

a

career

offender.

Still,

the

majority insists that he cannot challenge this mistake.

As a

result

more

years

of
in

our

decision,

prison.

It

Whiteside

is

at

least

unjust

simply

faces

to

deny

eight
someone

opportunity to receive a properly calculated sentence.

the

I must

dissent.
Make

no

mistake

that

we

possess

the

power

to

grant

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

entitled.

The

Supreme

Court

specifically

addressed

our

ability to do so a few years ago in Holland v. Florida, when it
reaffirmed a “presumption in favor” of equitably tolling AEDPA’s
statute of limitations.

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

original) (internal quotation marks omitted).
AEDPA,”

wrote

reinforced

by

the

Court,

the

fact

“the
that

“In the case of

presumption’s
‘equitable

strength

principles’

is
have

traditionally ‘governed’ the substantive law of habeas corpus
. . . .”

Id.

(2008)).

While

(quoting
noting

Munaf
AEDPA’s

v.

Geren,

basic

553

purpose

U.S.
of

674,

693

eliminating

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delays, the Court clarified that the statute was never meant to
displace “prior law, under which a petition’s timeliness was
always determined under equitable principles.”
Court was extraordinarily clear:
“does

not

set

forth

‘an

Id. at 648.

The

AEDPA’s statute of limitations

inflexible

whenever’ its ‘clock has run.’”

rule

requiring

dismissal

Id. at 645 (quoting Day v.

McDonough, 547 U.S. 198, 208 (2006)).
The Court in Holland specifically rejected the majority’s
approach to equitable tolling in two ways.

First, it made clear

that courts must be flexible and exercise their equitable powers
on a case-by-case basis instead of blindly following “mechanical
rules.”

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

392, 396 (1946)).
follow

past

Second, a court is not inexorably bound to

“‘accord[ing]

precedent
all

when

the

particular injustices.’”

doing

relief

so

would

necessary

prevent

to

it

correct

from
. . .

Id. (quoting Hazel-Atlas Glass Co. v.

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

Instead, we

should

equity

“follow[]

a

tradition

in

which

courts

of

have

sought to ‘relieve hardships which, from time to time, arise
from a hard and fast adherence’ to more absolute legal rules,
which,

if

rigidity.’”

strictly

applied,

threaten

the

‘evils

of

archaic

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

Despite this, the majority does exactly what Holland warns
against

by

applying

a

rigid
21

rule

that

results

in

gross

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It was our own mistake that resulted in Whiteside’s

classification as a career offender, which we finally corrected
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc).

By

that

point,

however,

Whiteside

had

already

been

sentenced under a regime that wrongly turned a blind eye to the
particular circumstances of a defendant’s predicate convictions.
The

career

offender

enhancement

–

for

which

nobody

disputes

Whiteside is now legally ineligible – increased his Sentencing
Guidelines range from 140-175 months to 262-327 months.

After a

government-requested downward departure, he was sentenced to 210
months.

Had Whiteside received an identical downward departure

without the enhancement, he would have received a sentence of
112 months.

This difference of more than eight years presents

precisely the kind of “situation[] [that] demand[s] equitable
intervention . . . to correct . . . [a] particular injustice[.]”
Holland, 560 U.S. at 650 (quoting Hazel-Atlas, 322 U.S. at 248).
Rather

than

heed

the

Supreme

Court,

the

majority

constructs for itself and then hides behind false barriers to
doing

what

is

right.

I

of

course

recognize

that

we

have

previously found that the futility of a petitioner’s claim does
not constitute a circumstance external to his control justifying
an untimely section 2254 petition.
663, 666 (4th Cir. 2000).
reliance

on

Minter

given

Minter v. Beck, 230 F.3d

However, the majority places too much
the

Supreme
22

Court’s

later

Holland

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decision. 1

Indeed, in concluding that Whiteside’s claim should

be

the

barred,

prior to Holland.

majority

primarily

relies

upon

cases

decided

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

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

Certainly the

Supreme Court was aware of its own precedent, yet still chose to
empower courts to exercise discretion when faced with individual
circumstances that might “warrant special treatment.”
560 U.S. at 650.

Holland,

Although the majority correctly observes that

“[n]othing in Holland undermines the[] holdings” in Bousley and
Engle, Maj. Op. at 14, it is also true that nothing in Holland
prohibits

this

Court,

despite

Bousley

and

Engle,

from

nonetheless doing justice through the exercise of its equitable
powers.
The majority furthermore attempts to justify its position
by contending that equitable tolling of Whiteside’s claim would
thwart the supposedly holy principle of finality, as well as
“trench upon the prerogatives of other institutions.”
at 18.

This is simply untrue.

Maj. Op.

Just this year, pursuant to its

Congressional mandate, the United States Sentencing Commission

1

I find it glaringly inconsistent of the majority to warn
against “invit[ing] additional collateral attacks,” Maj. Op. at
18-19,
while
simultaneously
penalizing
Whiteside
for
not
bringing a meritless petition in the time before Simmons was
decided, see Maj. Op. at 12 (“[N]othing prevented Whiteside from
filing
his
petition
within
the
one-year
statute
of
limitations.”).
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issued retroactive amendments to the Guidelines that will reduce
the base offense level for certain drug offenses by two.

See

Sentencing Guidelines for United States Courts, 79 Fed. Reg.
25,996, 26,004 (proposed May 6, 2014).

The Commission projects

over 46,000 offenders will be eligible for resentencing, though
not career offenders like Whiteside. 2

This development – which

only takes effect with the approval of Congress – exposes the
majority’s hyperbolic tendencies.

Although the majority accuses

equitable tolling of portending “a tectonic shift of resources,”
Maj. Op. at 16-17, apparently our legislative branch disagrees.
When it comes to “the values safeguarded by according final
judgments due effect,” Maj. Op. at 19, I concur with Congress
that finality gives way to fairness.

And the 2014 Guidelines

amendments do not mark the first time our government has found
it

necessary

to

take

steps

towards

effects of our sentencing laws.

reducing

the

draconian

In 2010, after realizing that

over eighty percent of crack cocaine defendants were African
Americans, Congress took action to correct what had developed as
a

discriminatory

Sentencing Act.

sentencing

scheme

by

passing

the

Fair

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

(6th Cir. 2013) (en banc) (Moore, J., concurring) (noting that
2

See News Release, U.S. Sentencing Comm’n, U.S. Sentencing
Commission Unanimously Votes to Allow Delayed Retroactive
Reduction in Drug Trafficking Sentences (July 18, 2014);
U.S.S.G. § 1B1.10(a)(2)(A).
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prior to the Act, “the average federal drug sentence for African
Americans was forty-nine percent longer than the average federal
drug sentence for Caucasians”).

It has also been more than one

year since our executive branch declined to enforce mandatoryminimum penalties for low-level drug offenses, which, according
to our Attorney General, disproportionately affect communities
of color. 3
My point is that the statistical deck was stacked against
Deangelo Whiteside from the beginning.

Then, our mistake in

casting him a career offender relegated him to an even longer
term of imprisonment.

In the face of this mistake, it is ironic

that our branch of government is the one dragging its feet on
the road towards equal justice under the law.

Rather than take

the slightest step in defense of a citizen’s liberty, we throw
up our hands and say, “too little, too late.”
reason?

To

avoid

the

chaos

that

3

would

And for what

befall

society

if

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

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WYNN, Circuit Judge, dissenting:
The majority opinion will, without a doubt, “drive citizens
to rub[] their eyes and scratch[] their heads.”

United States

v. Foster, 674 F.3d 391, 395 (4th Cir. 2012) (Wilkinson, J.,
concurring in denial of rehearing en banc).
inquire

of

an

objectively

reasonable

“If one were to

person

on

the

street

whether” a court should allow the correction of a sentencing
mistake caused solely by its own error—an error that will likely
cost

a

man

eight

years

of

freedom—no

the

Why do you ask?’”

“response would be ‘Of course.

doubt

citizen’s

Id.

Habeas corpus allows courts “‘to cut through barriers of
form and procedural mazes’” to effectuate the writ’s ultimate
purpose: safeguarding individual freedom against lawless state
action and ensuring “that miscarriages of justice . . . are
surfaced

and

corrected.’”

Hensley

v.

Mun.

Court,

San

Jose

Milpitas Judicial Dist., Santa Clara Cnty., Cal., 411 U.S. 345,
350 (1973) (quoting Harris v. Nelson, 394 U.S. 286, 291 (1969)).
Not

surprisingly,

affirmed

that

then,

“‘the

the

Supreme

principles

of

Court

has

comity

repeatedly

and

finality

informing’” procedural restrictions on habeas corpus proceedings
“‘must yield to the imperative of correcting a fundamentally
unjust’”

punishment.

Schlup

v.

Delo,

513

U.S.

298,

320–21

(1995) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).
And by eschewing “mechanical rules” that prevent courts from

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according

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“the

relief

Pg: 28 of 31

necessary

to

correct

.

.

.

particular

injustices,” the Supreme Court recently made plain that there
exists a “presumption in favor” of equitably tolling statutes of
limitations to habeas corpus petitions.
U.S.

631,

646

(2010)

(internal

Holland v. Florida, 560

quotation

marks

and

citation

omitted).
This

is

a

case

that

demands

a

yielding

of

“mechanical

rules” in favor of “the relief necessary to correct” a mistake
of our own making.

Id.

Deangelo Whiteside was sentenced as a

career

July

2010.

criminal

in

In

August

2011,

with

United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), this
Court corrected its misinterpretation of law that had led courts
in

this

Circuit

defendants’

ignore

predicate

Undisputedly,
criminal,

to

in

and

particular

convictions

light

his

the

of

for

Simmons,

enhanced

“career

circumstances

sentencing

Whiteside

was

criminal”

of

purposes.
no

career

sentence

was

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

in

May

2012,

Whiteside

petitioned

the

district

court to vacate his sentence.

But because more than a year had

passed

Whiteside’s

since

tardy.

his

sentencing,

petition

was

deemed

Today, this Court refuses to set aside that formalistic

time bar in the name of equity.
Strikingly, neither the law nor the facts of this case have
changed.

All that has changed is our interpretation of the law.
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In other words, we either forgot that “it’s our job to call
balls

and

strikes”—or

we

simply

got

the

call

dead

wrong.

Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to Be Chief Justice of the United States: Hearing Before the S.
Comm.

on

the

Judiciary,

109th

Judge John G. Roberts, Jr.).

Cong.

56

(2005)

(statement

of

Regardless of whether this Court’s

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

was

not

Deangelo

Whiteside’s

fault—yet

today

the

majority comes to the stunning conclusion that he must pay the
price. 1
Further,

the

other

interest in finality.

interests

at

stake

here

eclipse

our

Indeed, “if finality were our only or

even the more important institutional goal, we would not permit
any postconviction relief at all.”

Hawkins v. United States,

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

It is not finality, but rather “fairness

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

the

ability

to

rectify

1

substantial

uncontroverted

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

This is why in

our anthropomorphization of Justice, she is wearing a blindfold,
and not running shoes.”

Id.

Denying relief for the sake of

finality is particularly nonsensical where, as here, the issue
is

a

purely

legal

one

problems,

the

sentence

concerns,

the

financial

with
is

no

evidentiary

federal

cost

of

and

thus

or

spoilation

skirts

incarcerating

comity

Whiteside

for

years he should not spend in jail is surely enormous, and the
work associated with correcting Whiteside’s sentence—something
perhaps not even necessitating a formal resentencing hearing,
see, e.g., United States v. Hadden, 475 F.3d 652, 669 (4th Cir.
2007)—is likely minimal. 2
“Even appellate judges are endowed with brains in the hope
and

expectation

that

they

will

be

used

to

obvious

purpose.”

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

en

banc).

If

rectifying

a

mistake

of

our

own

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

2

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

Respectfully, I dissent.

31