Deangelo Whiteside v. United States

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7152
DEANGELO MARQUIS WHITESIDE,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00069-MR-1; 1:12-cv-00118-MR)
Argued: September 18, 2014 Decided: December 19, 2014
Before TRAXLER, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING,
GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, THACKER and
HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler, and Judges Niemeyer,
Motz, King, Shedd, Duncan, Agee, Keenan, Floyd, Thacker and
Harris joined. Judge Gregory wrote a dissenting opinion, in
which Senior Judge Davis joined. Judge Wynn wrote a dissenting
opinion. Judge Diaz did not participate in this decision.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
2
WILKINSON, Circuit Judge:
Deangelo Whiteside pled guilty to a charge of possession
with intent to distribute at least 50 grams of cocaine base,
pursuant to 21 U.S.C. § 841(a)(1). Based upon his criminal
record, he received the career offender enhancement under the
United States Sentencing Guidelines and was sentenced to 210
months imprisonment. Whiteside now raises various claims on a 28
U.S.C. § 2255 petition arguing that his sentence should be
vacated in light of United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). In accordance with the relevant statutes,
and in reliance upon Supreme Court and circuit precedent, we
hold that the filing of the § 2255 petition was untimely, and we
therefore affirm the district court’s dismissal of the petition.
We decline to address the other claims raised by the petitioner.
I.
Starting in 2007, various drug dealers in Asheville, North
Carolina, began identifying Deangelo Marquis Whiteside as a
wholesale crack cocaine distributor in the area. Following an
investigation, Whiteside was charged on July 22, 2009 in the
Western District of North Carolina with one count of possession
with intent to distribute more than 50 grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1). Prior to his plea agreement,
the government notified Whiteside that it intended to pursue an
enhanced penalty under 21 U.S.C. § 851 based on his 2002 North
3
Carolina conviction for possession with intent to manufacture,
sell, or deliver a controlled substance.
The presentence report determined that petitioner was
accountable for 1951.9 net grams of powder cocaine and 468.3 net
grams of cocaine base. Under 21 U.S.C. § 841(b)(1)(A), this
quantity of drugs would have subjected him to a mandatory
minimum of ten years in prison. The report detailed as well
Whiteside’s lengthy criminal record, including numerous
controlled-substances offenses, assault with a deadly weapon on
a government officer, and additional counts of assault, hit and
run, and resisting a public officer, which, independent of any
career offender enhancement, established a criminal history
category of V. See JA at 137. Whiteside did, however, qualify
for the career offender sentencing enhancement under § 4B1.1 of
the United States Sentencing Guidelines based on the 2002
conviction and another 1999 North Carolina conviction for
possession with intent to manufacture, sell, and deliver
cocaine.
The presentence report, accepted by the district court,
recommended an advisory guidelines range of 262 to 327 months
based on the offense conduct, Whiteside’s criminal record, and a
three-level reduction for acceptance of responsibility. The
government made a motion under § 5K1.1 of the Sentencing
Guidelines for a downward departure for substantial assistance,
4
which the court accepted. In light of the motion and after full
consideration of the sentencing factors set forth in 18 U.S.C.
§ 3553(a), the district judge ultimately sentenced Whiteside to
210 months. The court entered judgment on July 20, 2010, and
petitioner did not pursue a direct appeal. His conviction became
final on August 3, 2010, when his time for appeal expired.
On May 18, 2012, petitioner filed a motion under 28 U.S.C.
§ 2255 to vacate his sentence in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). He argued that
the sentence should be vacated because after Simmons his prior
drug offenses would no longer qualify as predicate felony
convictions for purposes of sentencing enhancements, including
the career offender enhancement under § 4B1.1 of the guidelines.
See Appellant’s Br. at 5. Assuming he would again receive a
three-level reduction for acceptance of responsibility and a
substantial assistance downward departure, Whiteside contends
that, if resentenced, he would be subject to a markedly lower
advisory guidelines range. Id. The government responds that the
district court “possessed both the statutory authority and the
discretion to impose the sentence it imposed, and were this case
remanded and [p]etitioner resentenced, the district court could
properly impose the same sentence, even without application of
the career-offender enhancement.” Gov’t Br. at 47.
5
The threshold issue before this court concerns the
timeliness of Whiteside’s § 2255 petition. The district court
for the Western District of North Carolina denied petitioner’s
motion as untimely and declined to apply equitable tolling. A
divided panel of this court vacated the sentence and remanded
for resentencing, holding that the statutory limitations period
should be equitably tolled and that Whiteside’s claims were
otherwise cognizable on collateral review. See Whiteside v.
United States, 748 F.3d 541 (4th Cir. 2014). A majority of the
active judges in the circuit voted to rehear the case en banc.
See Order Granting Rehearing En Banc of July 10, 2014. We now
hold that the petition is untimely and affirm the district
court’s dismissal of it.
II.
Petitions for collateral relief filed pursuant to 28 U.S.C.
§ 2255 are subject to a one-year statute of limitations governed
by § 2255(f). 1 The statute provides that the one-year clock is
triggered by one of four conditions, whichever occurs latest:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
1
This discussion is modified and adapted from section II of
the dissent to the panel’s original decision in this case. See
748 F.3d 541, 556 (4th Cir. 2014).
6
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
A.
Petitioner contends that his claim falls under
§ 2255(f)(4), and that United States v. Simmons, 649 F.3d 237(4th Cir. 2011) (en banc), qualified as a new “fact” for
purposes of that provision. Whiteside’s suit would be timely
under this theory, since he filed his petition less than a year
after Simmons was handed down.
Whiteside grounds his argument on the Supreme Court’s
decision in Johnson v. United States, 544 U.S. 295 (2005). In
Johnson, the defendant’s sentence in the original proceeding was
enhanced on the basis of two state convictions, one of which was
later vacated. Following vacatur, Johnson sought federal post-
conviction relief, contending that his enhanced sentence was no
longer valid. Johnson’s conviction had become final more than a
year before his § 2255 petition was filed, but the Court
concluded that the vacatur qualified as a new fact for purposes
7
of subsection (f)(4). See Johnson, 544 U.S. at 300-02. As the
Court noted:
We commonly speak of the “fact of a prior conviction,”
and an order vacating a predicate conviction is spoken
of as a fact just as sensibly as the order entering
it. In either case, a claim of such a fact is subject
to proof or disproof like any other factual issue.
Id. at 306-07 (internal citation omitted).
Johnson does not govern Whiteside’s claim. Simmons
represented a change of law, not fact. The circuits to have
considered this type of issue have uniformly reached the same
conclusion. See, e.g., Phillips v. United States, 734 F.3d 573,
580-83 (6th Cir. 2013) (finding the petition untimely where an
intervening change in the law was insufficient to render the
petitioner actually innocent); Lo v. Endicott, 506 F.3d 572, 575
(7th Cir. 2007) (finding that an intervening change in law was
not a new factual predicate sufficient to reset the statute of
limitations period under AEDPA); E.J.R.E. v. United States, 453
F.3d 1094, 1098 (8th Cir. 2006) (rejecting an intervening change
in law as insufficient to reset the statute of limitations
period under AEDPA and declining to equitably toll the statute
of limitations); Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th
Cir. 2005) (same); see also Minter v. Beck, 230 F.3d 663, 666
(4th Cir. 2000) (rejecting, in a similar context, defendant’s
attempt to invoke a change in law as an impediment to filing a
8
habeas petition sufficient to toll AEDPA’s statute of
limitations). 2
Contrary to the vacatur at issue in Johnson, Simmons did
not directly alter Whiteside’s legal status as a prior state
offender. See Lo, 506 F.3d at 575. A conviction is a fact for
sentencing purposes, but a relevant legal rule is not. Simmons,
“unlike a predicate conviction, is a ruling exclusively within
the domain of the courts and is incapable of being proved or
disproved.” E.J.R.E., 453 F.3d at 1098. This point is
illustrated by the simple observation that “[w]e would never
. . . ask a jury to decide whether a judicial decision had
indeed changed [the] law in the relevant way, nor would the
parties introduce evidence on the question.” Shannon, 410 F.3d
at 1089. Indeed, if this change in law is a “fact,” then what
would not be?
Instead of altering the factual landscape, Simmons
announced a generally applicable legal rule. A decision
“establishing an abstract proposition of law arguably helpful to
the petitioner’s claim does not constitute the ‘factual
predicate’ for that claim.” Id. Decisions that change the legal
significance of certain facts without modifying them do not
2
The statute of limitations provisions in AEDPA under 28
U.S.C. § 2244(d)(1)(A)-(D) and 28 U.S.C. § 2255(f)(1)-(4) are in
all material respects identical.
9
qualify under (f)(4). Simmons did precisely this: unlike a
vacatur decision, it altered the legal significance of
Whiteside’s prior convictions without amending the convictions
themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)
(“Time begins when the prisoner knows (or through diligence
could discover) the important facts, not when the prisoner
recognizes their legal significance.”); see also United States
v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).
Whiteside’s (f)(4) argument fails for the additional reason
that it would effectively nullify (f)(3), which provides for
tolling in instances where the defendant’s claim is founded on a
right “newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” 28
U.S.C. § 2255(f)(3). As the Eighth Circuit has reasoned:
[The specific criteria enumerated in (f)(3) for
tolling the limitations period] impliedly reject[] the
notion that the creation of a new right by the Supreme
Court that is not made retroactive to cases on
collateral review, other rulings of law by the Supreme
Court, and decisions taken from the courts of appeal
in all instances, could trigger any of the limitations
periods enumerated under § 2255.
E.J.R.E., 453 F.3d at 1098.
If changes in law are cognizable under (f)(4), then (f)(3)
becomes superfluous because any claim brought under (f)(3) could
also be brought under (f)(4). See Lo, 506 F.3d at 575. “To
suggest, as [the petitioner] does, that any decision by any
10
court on any issue could constitute a ‘factual predicate’ would
swallow up the specifically delineated limitations in” (f)(3).
Id. at 576. These considerations indicate that “subsequent
interpretations of the law can be the basis of delay in filing a
§ 2255 motion only in accordance with § 2255(f)(3)” -- not
(f)(4). Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th
Cir. 2011) (en banc) (internal quotation marks omitted). In
other words, Whiteside’s view would render the statute of
limitations virtually without limits. Notably, Whiteside does
not even attempt to argue that his claim satisfies the
requirements specified in (f)(3).
B.
Whiteside asserts in the alternative that if we reject his
statutory argument, the statute of limitations should be
equitably tolled. Equitable tolling of petitions for collateral
review is available only when a defendant demonstrates “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). Under this court’s precedent,
equitable tolling is appropriate in those “rare instances where
-- due to circumstances external to the party’s own conduct --
it would be unconscionable to enforce the limitation period
against the party and gross injustice would result.” Rouse v.
11
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)) (internal
quotation marks omitted); see also United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004).
Whiteside claims that he was prevented from timely filing
by the unfavorable precedent that would have governed his claim
had he sued prior to Simmons. The standard announced in
Holland, however, focuses not on whether unfavorable precedent
would have rendered a timely claim futile, but on whether a
factor beyond the defendant’s control prevented him from filing
within the limitations period at all. See Shannon, 410 F.3d at
1090. Although Simmons plainly made a collateral attack on
Whiteside’s sentence more plausible, nothing prevented Whiteside
from filing his petition within the one-year statute of
limitations. See E.J.R.E., 453 F.3d at 1098.
The Supreme Court has made clear that alleged futility
cannot serve as “cause” for a procedural default in the context
of collateral review. As the Court emphasized in Bousley v.
United States, “futility cannot constitute cause if it means
simply that a claim was unacceptable to that particular court at
that particular time.” 523 U.S. 614, 623 (1998) (quoting Engle
v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (internal quotation
marks omitted). Every case “presents a myriad of possible
claims.” Engle, 456 U.S. at 133. The demands of finality oblige
12
a petitioner to raise those claims that might possibly have
merit even where “he thinks [the court] will be unsympathetic to
the claim;” otherwise the claim is considered procedurally
defaulted. Id. at 130. It would be anomalous to contend that
futility -- something the Supreme Court has clearly said cannot
serve as cause for procedural default – does nonetheless serve
as cause for failure to timely file a § 2255 petition. For the
law of procedural default and that of equitable tolling address
the same basic question of when failures to raise claims are to
be deemed excusable.
This court’s decision in Minter v. Beck confirms this line
of reasoning. 230 F.3d 663 (4th Cir. 2000). In that case, as
here, the defendant’s claim originally seemed foreclosed by
extant precedent. After the issuance of a favorable decision,
Minter sought to collaterally attack his sentence, invoking a
provision equivalent to § 2255(f)(2). He contended that the
newly issued decision, by nullifying the unfavorable precedent
that had previously barred his claim, served to remove an
“impediment” to filing. After rejecting this argument, we held
that equitable tolling was inappropriate. Minter, 230 F.3d at
666-67. We reasoned that unfavorable precedent may have rendered
a timely claim unsuccessful but did not operate to bar Minter
from making the attempt. This court echoed the Supreme Court in
13
saying that “futility . . . is not a valid justification for
filing an untimely” petition. Id. at 666.
Nothing in Holland undermines these holdings. Though the
Court there cautioned against a “too rigid” approach to
equitable tolling, it nonetheless made clear that federal courts
were to invoke the doctrine only in cases of truly
“extraordinary circumstances.” Holland, 560 U.S. at 634, 649. In
that case, petitioner was the victim of extraordinary negligence
by his attorney, who not only failed to file his federal habeas
petition in a timely fashion, but also failed to communicate
with petitioner, failed to inform him that the Florida Supreme
Court had decided his case, and ignored his many letters
repeatedly emphasizing the importance of preserving his claims
for federal review. Id. at 652. Furthermore, the Florida courts
repeatedly denied petitioner’s attempts to file pro se or have
his attorney removed for this record of ineptitude. Id. at 653.
But those facts are far afield from the case at bar, which
involves unimpeded access to federal court for claims brought
there all the time.
Tellingly, Whiteside makes no allegation that he was unable
to file in a timely fashion -- only that doing so would probably
have been unsuccessful in light of extant case law. But that
allegation is manifestly insubstantial given the many defendants
who filed suits prior to Simmons asserting the exact same
14
substantive claim that Whiteside now raises, including, of
course, Simmons himself. See, e.g., United States v. Brandon,
376 F. App’x 343 (4th Cir. 2010) (per curiam) (unpublished);
United States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (per
curiam) (unpublished); United States v. Simmons, 340 F. App’x
141 (4th Cir. 2009) (per curiam) (unpublished), vacated, 130 S.
Ct. 3455 (2010). These claims were not entirely meritless even
under then-existing precedent: the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth
Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th
Cir. 2008), strongly foreshadowed Simmons. Equitable tolling
thus may not be applied where, as here, the only impediment to
timely filing was the discouragement felt by petitioner when
calculating his odds of success.
III.
Whiteside insists, however, that the disparity in circuit
law between then and now justifies setting aside the limitations
period. That contention, however, overlooks the open-ended
nature of his equitable tolling arguments. Roughly 80,000
persons are sentenced by federal district courts each year, and
“[p]recedential decisions come pouring out of the federal courts
of appeal and the Supreme Court” routinely. Hawkins v. United
States, 706 F.3d 820, 824 (7th Cir. 2013). If every favorable
precedential decision could become, as Whiteside would have it,
15
“a ticket to being resentenced,” id., the criminal justice
system would need to “continually . . . marshal resources in
order to keep in prison defendants whose trials and appeals [and
sentences] conformed to then-existing constitutional [and
statutory] standards.” Id. (quoting Teague v. Lane, 489 U.S.
288, 310 (1989) (plurality opinion)) (internal quotations
omitted) (brackets in original).
In other words, if we accepted Whiteside’s view, we would
be on the way to holding that a myriad of substantive changes in
law past the point of finality would suffice to equitably toll
the statute of limitations in § 2255(f) whenever it might be
conjectured that past and future outcomes would be different.
The implications of any such argument foreshadow a tectonic
shift of resources from trial and direct appeal to repetitive
rounds of collateral review. While resentencing is generally not
as significant an encumbrance as a retrial, “the cumulative
burden of resentencing in a great many stale cases could be
considerable.” Id. That, of course, is the precise prospect a
statute of limitations is enacted to prevent. As several
circuits have noted, it is quite improper to use the doctrine of
equitable tolling to circumvent the express limitations
contained in § 2255. See, e.g., Lo, 506 F.3d at 576. A step of
this magnitude would require either an act of Congress or a
16
ruling from the Supreme Court, neither of which has come to
pass.
Whiteside’s conviction became final on August 3, 2010. At
the time, he was sentenced under the sentencing scheme outlined
in United States v. Harp. See 406 F.3d 242 (4th Cir. 2005). On
August 17, 2011, the court, sitting en banc, reversed the panel
decision in Simmons, expressly overruling Harp and this court’s
treatment of predicate convictions for career offender
enhancements. See Simmons, 649 F.3d 237. Whiteside did not file
his motion to vacate his sentence in light of Simmons until May
18, 2012, almost two years after his conviction became final.
But the relevant limitations period under § 2255(f) is one year
after the conviction is final, not one year from a decision that
effectuates a change in circuit law.
To appreciate the point, suppose three, five, or ten years
had passed between a conviction becoming final and the time when
some change in circuit law occurred. If we were to adopt
Whiteside’s argument, whenever there is a change in circuit law
of sufficient magnitude (whatever that is), a petitioner would
have a year to file after the change, even if many years had
passed since the conviction became final. That simply vitiates
the point of statutes of limitations in general and this one in
particular, namely that the relevant evidence not be stale or
missing. Even changes in law must be applied to facts, and
17
statutes of limitation reduce the risk of claims being less
accurately litigated long after the fact.
It bears briefly summarizing just how much Whiteside would
trench upon the prerogatives of other institutions to find
equitable tolling in these circumstances. Petitioner would
circumvent Congress’s highly refined statute of limitations,
which specifically sets forth in § 2255(f)(3) when tolling would
lie as a result of a change in law, a criterion which petitioner
has manifestly failed to satisfy. Petitioner would further have
us disregard the Supreme Court’s pointed language in Bousley and
Engle and its historic limitation of equitable tolling to
extraordinary circumstances beyond a petitioner’s control. See
Holland v. Florida, 560 U.S. 631 (2010). In disregarding the
prerogatives of other institutions, we would invite additional
collateral attacks long after convictions were final and
whenever a change in law of arguable import might appear. Every
statute of limitations contemplates by definition the
possibility that some favorable development after the
limitations period might occur. The legislative branch of our
government is entrusted to set the balance between the ends of
equity and the values safeguarded by according final judgments
due effect. It is not our office to reset or recalibrate that
balance in the case at bar. The judgment of the district court
18
must accordingly be affirmed because the petition herein was not
timely filed. 3
AFFIRMED
3
The court wishes to express its appreciation both to Ann
Hester and Amy Ray for the fine quality of their advocacy in
this case.
19
GREGORY, Circuit Judge, dissenting, with whom DAVIS, Senior
Circuit Judge, joins:
The majority today makes a choice. It has chosen not to
exercise its powers in equity – which the Supreme Court recently
affirmed – and to allow a gross injustice to be committed
against Deangelo Whiteside. Nobody disputes that Whiteside has
been erroneously designated a career offender. Still, the
majority insists that he cannot challenge this mistake. As a
result of our decision, Whiteside faces at least eight more
years in prison. It is simply unjust to deny someone the
opportunity to receive a properly calculated sentence. I must
dissent.
Make no mistake that we possess the power to grant
Whiteside the equitable relief he seeks and, indeed, to which he
is entitled. The Supreme Court specifically addressed our
ability to do so a few years ago in Holland v. Florida, when it
reaffirmed a “presumption in favor” of equitably tolling AEDPA’s
statute of limitations. 560 U.S. 631, 646 (2010) (emphasis in
original) (internal quotation marks omitted). “In the case of
AEDPA,” wrote the Court, “the presumption’s strength is
reinforced by the fact that ‘equitable principles’ have
traditionally ‘governed’ the substantive law of habeas corpus
. . . .” Id. (quoting Munaf v. Geren, 553 U.S. 674, 693
(2008)). While noting AEDPA’s basic purpose of eliminating
delays, the Court clarified that the statute was never meant to
displace “prior law, under which a petition’s timeliness was
always determined under equitable principles.” Id. at 648. The
Court was extraordinarily clear: AEDPA’s statute of limitations
“does not set forth ‘an inflexible rule requiring dismissal
whenever’ its ‘clock has run.’” Id. at 645 (quoting Day v.
McDonough, 547 U.S. 198, 208 (2006)).
The Court in Holland specifically rejected the majority’s
approach to equitable tolling in two ways. First, it made clear
that courts must be flexible and exercise their equitable powers
on a case-by-case basis instead of blindly following “mechanical
rules.” Id. at 650 (quoting Holmberg v. Armbrecht, 327 U.S.
392, 396 (1946)). Second, a court is not inexorably bound to
follow past precedent when doing so would prevent it from
“‘accord[ing] all the relief necessary to correct . . .
particular injustices.’” Id. (quoting Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 248 (1944)). Instead, we
should “follow[] a tradition in which courts of equity have
sought to ‘relieve hardships which, from time to time, arise
from a hard and fast adherence’ to more absolute legal rules,
which, if strictly applied, threaten the ‘evils of archaic
rigidity.’” Id. (quoting Hazel-Atlas, 322 U.S. at 248).
Despite this, the majority does exactly what Holland warns
against by applying a rigid rule that results in gross
21
injustice. It was our own mistake that resulted in Whiteside’s
classification as a career offender, which we finally corrected
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). By that point, however, Whiteside had already been
sentenced under a regime that wrongly turned a blind eye to the
particular circumstances of a defendant’s predicate convictions.
The career offender enhancement – for which nobody disputes
Whiteside is now legally ineligible – increased his Sentencing
Guidelines range from 140-175 months to 262-327 months. After a
government-requested downward departure, he was sentenced to 210
months. Had Whiteside received an identical downward departure
without the enhancement, he would have received a sentence of
112 months. This difference of more than eight years presents
precisely the kind of “situation[] [that] demand[s] equitable
intervention . . . to correct . . . [a] particular injustice[.]”
Holland, 560 U.S. at 650 (quoting Hazel-Atlas, 322 U.S. at 248).
Rather than heed the Supreme Court, the majority
constructs for itself and then hides behind false barriers to
doing what is right. I of course recognize that we have
previously found that the futility of a petitioner’s claim does
not constitute a circumstance external to his control justifying
an untimely section 2254 petition. Minter v. Beck, 230 F.3d
663, 666 (4th Cir. 2000). However, the majority places too much
reliance on Minter given the Supreme Court’s later Holland
22
decision. 1 Indeed, in concluding that Whiteside’s claim should
be barred, the majority primarily relies upon cases decided
prior to Holland. See, e.g., Bousley v. United States, 523 U.S.
614 (1998); Engle v. Isaac, 456 U.S. 107 (1982). Certainly the
Supreme Court was aware of its own precedent, yet still chose to
empower courts to exercise discretion when faced with individual
circumstances that might “warrant special treatment.” Holland,
560 U.S. at 650. Although the majority correctly observes that
“[n]othing in Holland undermines the[] holdings” in Bousley and
Engle, Maj. Op. at 14, it is also true that nothing in Holland
prohibits this Court, despite Bousley and Engle, from
nonetheless doing justice through the exercise of its equitable
powers.
The majority furthermore attempts to justify its position
by contending that equitable tolling of Whiteside’s claim would
thwart the supposedly holy principle of finality, as well as
“trench upon the prerogatives of other institutions.” Maj. Op.
at 18. This is simply untrue. Just this year, pursuant to its
Congressional mandate, the United States Sentencing Commission
1
I find it glaringly inconsistent of the majority to warn
against “invit[ing] additional collateral attacks,” Maj. Op. at
18-19, while simultaneously penalizing Whiteside for not
bringing a meritless petition in the time before Simmons was
decided, see Maj. Op. at 12 (“[N]othing prevented Whiteside from
filing his petition within the one-year statute of
limitations.”).
23
issued retroactive amendments to the Guidelines that will reduce
the base offense level for certain drug offenses by two. See
Sentencing Guidelines for United States Courts, 79 Fed. Reg.
25,996, 26,004 (proposed May 6, 2014). The Commission projects
over 46,000 offenders will be eligible for resentencing, though
not career offenders like Whiteside. 2 This development – which
only takes effect with the approval of Congress – exposes the
majority’s hyperbolic tendencies. Although the majority accuses
equitable tolling of portending “a tectonic shift of resources,”
Maj. Op. at 16-17, apparently our legislative branch disagrees.
When it comes to “the values safeguarded by according final
judgments due effect,” Maj. Op. at 19, I concur with Congress
that finality gives way to fairness. And the 2014 Guidelines
amendments do not mark the first time our government has found
it necessary to take steps towards reducing the draconian
effects of our sentencing laws. In 2010, after realizing that
over eighty percent of crack cocaine defendants were African
Americans, Congress took action to correct what had developed as
a discriminatory sentencing scheme by passing the Fair
Sentencing Act. See United States v. Blewett, 746 F.3d 647, 667
(6th Cir. 2013) (en banc) (Moore, J., concurring) (noting that
2
See News Release, U.S. Sentencing Comm’n, U.S. Sentencing
Commission Unanimously Votes to Allow Delayed Retroactive
Reduction in Drug Trafficking Sentences (July 18, 2014);
U.S.S.G. § 1B1.10(a)(2)(A).
24
prior to the Act, “the average federal drug sentence for African
Americans was forty-nine percent longer than the average federal
drug sentence for Caucasians”). It has also been more than one
year since our executive branch declined to enforce mandatory-
minimum penalties for low-level drug offenses, which, according
to our Attorney General, disproportionately affect communities
of color. 3
My point is that the statistical deck was stacked against
Deangelo Whiteside from the beginning. Then, our mistake in
casting him a career offender relegated him to an even longer
term of imprisonment. In the face of this mistake, it is ironic
that our branch of government is the one dragging its feet on
the road towards equal justice under the law. Rather than take
the slightest step in defense of a citizen’s liberty, we throw
up our hands and say, “too little, too late.” And for what
reason? To avoid the chaos that would befall society if
3
See Eric Holder, U.S. Attorney General, Remarks at the
Annual Meeting of the American Bar Association’s House of
Delegates (Aug. 12, 2013) (“We also must confront the reality
that – once they’re in the system – people of color often face
harsher punishments than their peers . . . . This isn’t just
unacceptable – it is shameful.”). Recently, the Justice
Department also expressed its confidence in a robust habeas
process by announcing a new policy that it will no longer ask
criminal defendants who plead guilty to waive the right to bring
future claims of ineffective assistance of counsel. See Press
Release, U.S. Dep’t of Justice, Attorney General Holder
Announces New Policy to Enhance Justice Department’s Commitment
to Support Defendants’ Right to Counsel (Oct. 14, 2014).
25
criminals were imprisoned according to a correct understanding
of the law?
I dissent.
26
WYNN, Circuit Judge, dissenting:
The majority opinion will, without a doubt, “drive citizens
to rub[] their eyes and scratch[] their heads.” United States
v. Foster, 674 F.3d 391, 395 (4th Cir. 2012) (Wilkinson, J.,
concurring in denial of rehearing en banc). “If one were to
inquire of an objectively reasonable person on the street
whether” a court should allow the correction of a sentencing
mistake caused solely by its own error—an error that will likely
cost a man eight years of freedom—no doubt the citizen’s
“response would be ‘Of course. Why do you ask?’” Id.Habeas corpus allows courts “‘to cut through barriers of
form and procedural mazes’” to effectuate the writ’s ultimate
purpose: safeguarding individual freedom against lawless state
action and ensuring “that miscarriages of justice . . . are
surfaced and corrected.’” Hensley v. Mun. Court, San Jose
Milpitas Judicial Dist., Santa Clara Cnty., Cal., 411 U.S. 345,
350 (1973) (quoting Harris v. Nelson, 394 U.S. 286, 291 (1969)).
Not surprisingly, then, the Supreme Court has repeatedly
affirmed that “‘the principles of comity and finality
informing’” procedural restrictions on habeas corpus proceedings
“‘must yield to the imperative of correcting a fundamentally
unjust’” punishment. Schlup v. Delo, 513 U.S. 298, 320–21
(1995) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).
And by eschewing “mechanical rules” that prevent courts from
according “the relief necessary to correct . . . particular
injustices,” the Supreme Court recently made plain that there
exists a “presumption in favor” of equitably tolling statutes of
limitations to habeas corpus petitions. Holland v. Florida, 560
U.S. 631, 646 (2010) (internal quotation marks and citation
omitted).
This is a case that demands a yielding of “mechanical
rules” in favor of “the relief necessary to correct” a mistake
of our own making. Id. Deangelo Whiteside was sentenced as a
career criminal in July 2010. In August 2011, with United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), this
Court corrected its misinterpretation of law that had led courts
in this Circuit to ignore the particular circumstances of
defendants’ predicate convictions for sentencing purposes.
Undisputedly, in light of Simmons, Whiteside was no career
criminal, and his enhanced “career criminal” sentence was
premised on this Court’s erroneous interpretation of the law.
Accordingly, in May 2012, Whiteside petitioned the district
court to vacate his sentence. But because more than a year had
passed since his sentencing, Whiteside’s petition was deemed
tardy. Today, this Court refuses to set aside that formalistic
time bar in the name of equity.
Strikingly, neither the law nor the facts of this case have
changed. All that has changed is our interpretation of the law.
28
In other words, we either forgot that “it’s our job to call
balls and strikes”—or we simply got the call dead wrong.
Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to Be Chief Justice of the United States: Hearing Before the S.
Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of
Judge John G. Roberts, Jr.). Regardless of whether this Court’s
error was grounded in judicial activism or an honest mistake, it
certainly was not Deangelo Whiteside’s fault—yet today the
majority comes to the stunning conclusion that he must pay the
price. 1
Further, the other interests at stake here eclipse our
interest in finality. Indeed, “if finality were our only or
even the more important institutional goal, we would not permit
any postconviction relief at all.” Hawkins v. United States,
724 F.3d 915, 923 (7th Cir. 2013) (Rovner, J., dissenting from
denial of rehearing). It is not finality, but rather “fairness
[that] is the lifeblood of our system of justice,” and “justice
requires the ability to rectify substantial uncontroverted
1
The majority opinion spills considerable ink explaining
why the judiciary should not bear the burden of its own mistake.
Those who were wrongly (over-)sentenced will surely sleep easier
knowing that the courts are not being overworked by too many
“tickets to being resentenced.” Ante at 16. The prison staff
that must look after wrongly-imprisoned defendants—not to
mention the taxpayers who foot the hefty bill for their
(wrongful) incarceration—might, however, take issue with the
majority’s calculus.
29
judicial errors that cause significant injury. This is why in
our anthropomorphization of Justice, she is wearing a blindfold,
and not running shoes.” Id. Denying relief for the sake of
finality is particularly nonsensical where, as here, the issue
is a purely legal one with no evidentiary or spoilation
problems, the sentence is federal and thus skirts comity
concerns, the financial cost of incarcerating Whiteside for
years he should not spend in jail is surely enormous, and the
work associated with correcting Whiteside’s sentence—something
perhaps not even necessitating a formal resentencing hearing,
see, e.g., United States v. Hadden, 475 F.3d 652, 669 (4th Cir.
2007)—is likely minimal. 2
“Even appellate judges are endowed with brains in the hope
and expectation that they will be used to obvious purpose.”
Foster, 674 F.3d at 394 (Wilkinson, J., concurring in denial of
rehearing en banc). If rectifying a mistake of our own
creation—one that will cost a man eight years of his freedom—
2
The district court did not err in applying pre-Simmons
case law and sentencing Whiteside as it did. The error was ours
and ours alone. To the extent the majority’s decision to deny
habeas relief stems from its reluctance to reverse the district
court’s dutiful application of Fourth Circuit precedent, the
majority’s decision is misguided. When an individual’s liberty
is at stake, I have every confidence that our district court
colleagues understand that our role as an appellate court is to
correct legal errors, including our own.
30
does not constitute an “obvious purpose,” I do not know what
does. Respectfully, I dissent.
31