Deangelo Whiteside v. United States

ing Deangelo Marquis as a Whiteside TRAXLER, Judge, Before Chief crack in the wholesale cocaine distributor MOTZ, WILKINSON, NIEMEYER, Following investigation, area. White- SHEDD, DUNCAN, KING, GREGORY, charged July 22, side on 2009 in the WYNN, FLOYD, KEENAN, AGEE, with Western District of North Carolina HARRIS, and THACKER Circuit Judges, possession intent one count of with to dis- DAVIS, Judge. Circuit and Senior grams of tribute more than 50 cocaine Judge by published opinion. Affirmed 841(a)(1). § base in violation of 21 U.S.C. opinion, wrote WILKINSON plea agreement, govern- Prior to his TRAXLER, Judges Judge and Chief it ment notified Whiteside that intended SHEDD, NIEMEYER, MOTZ, KING, pursue penalty an enhanced under DUNCAN, AGEE, KEENAN, FLOYD, § on 2002 North 851 based U.S.C. joined. Judge and HARRIS THACKER in- possession conviction for with Carolina opinion, in dissenting a GREGORY wrote manufacture, sell, tent or deliver a con- joined. Judge DAVIS Judge which Senior trolled substance. dissenting Judge opinion. wrote WYNN report determined that presentence in this participate DIAZ decision. did 1951.9 net petitioner was accountable for BANC REHEARING EN ON cocaine and 468.3 net grams powder WILKINSON, grams of cocaine base. Under U.S.C. Judge: Circuit 841(b)(1)(A), quantity drugs § pled guilty Deangelo mandatory subjected him to to distrib- charge possession with intent The re- years prison. of ten minimum base, grams ute at cocaine least lengthy port detailed as well 841(a)(1). § Based pursuant to U.S.C. record, con- including numerous criminal record, received the upon his criminal he offenses, with a assault trolled-substances under the career offender enhancement officer, weapon on deadly Sentencing and United States Guidelines assault, and hit and additional counts imprison- 210 months was sentenced to which, officer, run, public resisting now raises various ment. Whiteside en- any career offender independent argu- claims a 28 U.S.C. hancement, history a criminal established should be vacated ing that his sentence at 137. Whiteside of V. JA category of light (en banc). did, however, (4th Cir.2011) for the career offend- qualify In ac- F.3d 237 statutory authority 4B1.1 both er enhancement sessed Sentencing of the United States Guidelines impose the discretion to sentence based on the 2002 conviction and another imposed, and were case remanded and posses- 1999 North Carolina conviction for resenteneed, [petitioner the district court manufacture, sell, intent sion with properly sentence, impose could the same deliver cocaine. without application even of the career-of- fender enhancement.” Br. at Gov’t by report, accepted

The the presentence court, advisory an district recommended The threshold issue before court guidelines range of 262 327 months the timeliness concerns of Whiteside’s conduct, based on the offense Whiteside’s petition. § 2255 The district for court record, criminal and a three-level reduc- North Western District of Carolina denied acceptance responsibility. tion for The petitioner’s motion as and untimely de- § made a under 5K1.1 motion apply A equitable clined tolling. divid- Sentencing of the Guidelines a down- for panel ed of this court vacated the sentence assistance, departure ward for substantial remanded resentencing, holding court In accepted. light of the statutory that the period limitations should motion and after full consideration of the equitably tolled that Whiteside’s sentencing factors set forth in 18 U.S.C. cognizable claims were on otherwise collat- 3553(a), § judge ultimately the district eral review. See Whiteside v. United sentenced Whiteside to 210 The months. States, (4th Cir.2014). 748 F.3d 541 A 20, 2010, court on judgment July entered majority of judges the active in the circuit petitioner pursue ap- did not a direct the case en banc. See voted rehear peal. His conviction final Au- became Granting Rehearing Order En Banc of gust when his time for appeal July peti- now hold that the We expired. untimely tion is and affirm the district May On petitioner filed a mo court’s dismissal of it. § tion under 28 U.S.C. 2255 to vacate his of United States v. Sim light sentence in II. mons, (en Cir.2011) 649 F.3d 237 pursu- Petitions for collateral relief filed banc). argued He the sentence subject § ant to 28 U.S.C. are to a should be vacated because after Simmons one-year statute of governed by prior drug longer offenses would no 2255(f).1 § provides The statute qualify predicate felony convictions for one-year triggered by clock is one four' enhancements, purposes in conditions, whichever occurs latest: cluding the career offender enhancement (1) the judgment date on which the guidelines. Ap 4B1.1 of the final; conviction becomes pellant’s Br. at 5. Assuming he would (2) the again date on which the impediment receive three-level reduction making acceptance responsibility by governmen- motion created and a substan tial tal assistance downward action violation of the departure, Constitution that, resentenced, removed, if Whiteside contends or laws of the he United States is subject markedly would be to a if prevented advi the movant was from mak- lower Id. sory guidelines range. govern ing governmental motion such ac- ment responds “pos- tion; district court adapted

1. This discussion is original modified and decision in case. See F.3d (4th Cir.2014). from section II of panel's the dissent to the subject (3) proof disproof fact is or like right asserted date on which any other factual issue. initially recognized by newly has rec- right 306-07, if that been Id. at cita- and tion by the ognized applicable to cases on retroactively

made govern does not Johnson review; or collateral change represented claim. Simmons law, not fact. The circuits to have consid (4) support- the facts date on which type uniformly ered this of issue have presented could ing claim or claims See, e.g., the same reached conclusion. through the exer- been discovered Phillips diligence. of due cise (6th Cir.2013) (finding 580-83 2255(f)(l)-(4). 28 U.S.C. untimely intervening change where peti to law was insufficient render A. innocent); Endicott, actually tioner Lo v. his contends that claim Petitioner (7th Cir.2007) (finding 506 575 F.3d 2255(f)(4), § and that United falls under change was not intervening th'at an in law (4th Simmons, 649 F.3d 237 Cir. States v. predicate a factual sufficient reset new 2011) (en banc), a new “fact” qualified as of period limitations under statute States, provision. White- AEDPA); of purposes E.J.R.E. v. United 453 Cir.2006) (8th 1094, 1098 timely (rejecting this theo F.3d an would be under side’s suit in law insufficient to intervening change as a ry, petition he filed his less than since period un reset the statute of limitations year Simmons was handed down. after declining equitably der toll AEDPA on the grounds argument limitations); of Shannon v. statute Supreme Court’s decision Johnson (9th Newland, 410 1088-89 Cir. F.3d States, 295, 125 U.S. 544 Beck, 2005) (same); also 230 see Minter (2005). Johnson, In 1571, 161 542 L.Ed.2d Cir.2000) (4th (rejecting, in a F.3d 666 original sentence in the defendant’s context, attempt in similar defendant’s was the basis of proceeding enhanced on an change impediment in law as voke a convictions, one which was two of state to toll petition habeas sufficient filing a vacatur, Following later Johnson vacated. limitations).2 AEDPA’s statute of relief, con sought post-conviction federal at issue in Contrary to the vacatur no his enhanced sentence was tending Johnson, directly alter did not Simmons had be longer valid. Johnson’s conviction state legal prior status as a Whiteside’s year than a before his final more come Lo, A at 575. See offender. filed, § the Court 2255 but sentencing pur- a is fact conviction qualified as a that the vacatur concluded is legal a rule' not. poses, but relevant (f)(4). of subsection purposes new fact for conviction, predicate “unlike a Johnson, As at See 300-02. domain of exclusively a within the ruling Court noted: being proved incapable of the courts and is of “fact a speak commonly We E.J.R.E., F.3d or disproved.” conviction,” vacating and an prior order simple ob- This is illustrated point of as a spoken a ... a predicate conviction never ask servation that would “[w]e judicial a decision just sensibly jury as as the order enter- decide fact whether in the rele- case, changed law [the] a had indeed In claim such ing it. either 2255(f)(l)-(4) § all material are in provisions in 28 U.S.C. AED- 2. The statute limitations 2244(d)(l)(A)-(D) respects § identical. PA under U.S.C. (f)(3) claim way, parties any vant nor introduce cause under could brought Shannon, question.” (f)(4). evidence on the Lo, brought also be under Indeed, if change F.3d at 1089. law petition- F.3d at 575. “To suggest, [the “fact,” is a then what would not be? does, any by any decision court on er] altering landscape, the factual Instead any predi- could issue constitute ‘factual generally applica- Simmons announced up specifically cate’ would swallow the de- legal “establishing ble rule. A decision (f)(3). lineated limitations in” Id. at 576. proposition arguably help- abstract law These considerations indicate that “subse- ful petitioner’s claim not consti- does quent interpretations the law can be the predicate’ tute the ‘factual for that claim.” delay filing basis 2255 motion change legal Id. signifi- Decisions that 2255(f)(3)”—not only in accordance with modifying cance of certain facts without (f)(4). Bear v. United Sun (f)(4). qualify them do not Sim- (8th (en Cir.2011) banc) F.3d 702 n. 5 precisely this: mons did unlike vacatur quotation marks In decision, it legal altered the significance of words, other Whiteside’s view would ren- prior convictions without der the virtually statute amending the convictions themselves. See Notably, without limits. Whiteside does Boyd, Owens Cir.2000) (“Time begins prisoner when the attempt argue not even that his claim (or through diligence knows could discov- requirements specified satisfies the in er) facts, important pris- the the when (f)(3). recognizes legal significance.”); oner their Pollard,

see also United 416 States F.3d B. (D.C.Cir.2005). 48, 55 (f)(4) argument fails for the in Whiteside asserts the alterna additional reason that it effectively reject statutory argu tive that if we his (f)(3), nullify provides tolling for in ment, statute of the limitations should be instances where the defendant’s claim is equitably Equitable tolling peti tolled. on right “newly recognized founded a by only tions for collateral review available Supreme the retroactively Court and made “(1) when a defendant demonstrates that applicable to cases on collateral review.” he pursuing rights diligently, has been his 2255(f)(3). 28 Eighth U.S.C. As the Cir- (2) that- extraordinary some circum cuit has reasoned: in way stance stood prevented his specific [The criteria enumerated in Florida, timely filing.” Holland v. 560 (f)(3) for the tolling period] limitations 177 L.Ed.2d impliedly rejeet[] the notion that the (2010) quotation marks omit right creation of a by Supreme new ted). precedent, equita Under court’s Court that is not made retroactive to ble tolling appropriate “rare those review, cases collateral rulings other instances ex by where—due circumstances of law the Supreme and deci- appeal sions taken from the ternal own party’s courts of conduct—it instances, all any could trigger the would be unconscionable enforce the periods enumerated under period against limitation party § 2255. gross injustice would result.” Rouse v. E.J.R.E., 453 F.3d 1098. Lee, (4th Cir.2003) (en at 339 F.3d banc) Hutchinson, (quoting changes

If Harris cognizable law are (f)(4), (f)(3) (4th Cir.2000)) (internal then superfluous quo- becomes be- F.3d the law omitted); petition. procedural For default also United see tation marks Sosa, equitable tolling and that of address the .2004). question same of when failures to basic Cir raise are to claims be deemed excusable. prevented was claims that he

Whiteside prec- unfavorable filing timely from This court’s decision in Minter v. Beck his claim governed that would edent reasoning. this line of F.3d confirms The stan- prior (4th Cir.2000). had he sued Simmons. case, here, In that Holland, however, fo- dard announced originally claim defendant’s seemed prece- whether unfavorable cuses not on by extant precedent. foreclosed After timely claim have rendered dent would decision, issuance of favorable Minter futile, beyond factor but on whether a sentence, sought collaterally his attack prevented him from control defendant’s provision equivalent invoking all. period the limitations at filing within 2255(f)(2). newly He that contended Shannon, Although 410 F.3d at 1090. See decision, by nullifying the issued unfavora- made a collateral attack plainly Simmons precedent previously ble had barred plausible, more on Whiteside’s sentence claim, his an “impedi- served remove filing from nothing prevented rejecting argu- filing. ment” to After one-year statute of petition within ment, that equitable tolling we held E.J.R.E., 453 limitations. Minter, 230 F.3d at 666- inappropriate. prece- reasoned that unfavorable We timely may dent have rendered claim made has clear Court operate unsuccessful but did not to bar futility serve as alleged cannot attempt. This making Minter from in the procedural “cause” default saying Court in court echoed theAs context of collateral review. justification ... “futility is not a valid emphasized Bousley v. United untimely” Id. at 666. filing petition. if it “futility constitute cause means cannot unacceptable Nothing in Holland undermines these simply a claim to that Though there cau particular holdings. that the Court particular that court at 614, 1604, approach to 623, against rigid” tioned a “too 118 S.Ct. time.” 523 U.S. (1998) tolling, it clear equitable nonetheless made (quoting Engle 140 v. L.Ed.2d 828 107, 35, to invoke doc Isaac, 102 that courts were n. S.Ct. federal 456 U.S. 130 (internal “extraordinary (1982)) truly of 1558, only trine in cases quo 71 783 L.Ed.2d 634, Holland, 560 U.S. at Every “pres case circumstances.” tation marks case, 649, petition 2549. In that 130 S.Ct. myriad possible Engle, claims.” ents extraordinary negli 133, victim of 1558. The de er was the 456 U.S. at only not failed gence by attorney, his who finality petitioner oblige mands of in a his federal habeas might possibly that have file raise those claims fashion, failed to communi timely but also thinks [the court] merit even where “he claim;” to inform him cate failed petitioner, with will be other unsympathetic Supreme Court had decid that Florida procedurally is wise the claim considered many case, ignored his letters 130, ed his It Id. at 102 S.Ct. 1558. defaulted. importance repeatedly emphasizing that futili would be anomalous to contend his for federal review. preserving claims Court has ty—something Furthermore, the Florida Id. at 652. clearly pro serve as cause for said cannot at petitioner’s repeatedly denied as courts nonetheless serve cedural default—does attorney have tempts pro to file se or timely 2255 cause failure to file 186

removed record ineptitude. pouring for this Id. come out of federal courts of But facts appeal those are far afield from and the Court” routinely. bar, unimpeded 820, the case at v. involves Hawkins United (7th Cir.2013). court brought every access to federal for claims 824 If favorable become, there all the time. precedential decision could as it, “a being ticket to Tellingly, allega Whiteside makes no resentenced,” id., justice sys the criminal tion timely that he was unable to file in a “continually tem would need to ... mar doing fashion—only proba that so would in keep shal resources order in prison bly light have been unsuccessful ex appeals defendants whose trials [and tant case But is allegation law. then-existing sentences] conformed to con manifestly given many insubstantial stitutional statutory] [and standards.” Id. prior defendants who filed suits to Sim Lane, Teague 288, (quoting 489 U.S. asserting mons the exact same substan 1060, 103 (1989) S.Ct. 109 L.Ed.2d 334 raises, tive claim that Whiteside in now (plurality opinion)) quotations course, See, cluding, of Simmons himself. (brackets omitted) original). Brandon, e.g., United Fed. 376 (4th Cir.2010) curiam) (un Appx. (per words, In other if accepted we White- Summers, published); view, States v. side’s way would be (4th Cir.2010) Fed.Appx. (per cu holding myriad of substantive riam) (unpublished); changes past United States law point of finality Fed.Appx. Cir. would toll equitably suffice the statute curiam) 2009) vacated, 2255(f) (per (unpublished), whenever it conjectured S.Ct. 177 might past and future (2010). L.Ed.2d 1048 These claims were outcomes would be implica- different. The entirely not meritless even then- any tions of such argument foreshadow a existing precedent: the Supreme Court’s shift tectonic from resources trial and Holder, decision in Carachuri-Rosendo v. appeal repetitive direct rounds of collat- 560 U.S. 177 L.Ed.2d resentencing eral review. While gener- (2010), opinion ahd the Sixth ally significant Circuit’s as not an encumbrance as a Pruitt, retrial, United States v. 545 F.3d 416 “the cumulative burden resen- (6th Cir.2008), strongly foreshadowed in a tencing great many stale cases could Equitable That, Simmons. tolling may course, thus be considerable.” Id. where, here, be applied only prospect the precise of limita- statute impediment timely filing the was dis tions enacted prevent. is As several couragement by petitioner felt noted, when cal circuits have quite improper is culating his odds of success. use the doctrine of equitable tolling to express

circumvent the limitations con- III. See, Lo, §in e.g., tained 2255. 506 F.3d at step 576. A magnitude would re- insists, however, Whiteside that the dis- quire either an act or a Congress ruling parity in law circuit between then and now from the neither of which justifies aside setting peri- the limitations pass. has come to contention, however, od. That overlooks open-ended the nature of his equitable toll- Whiteside’s conviction became final on ing arguments. 80,000 Roughly persons time, August At the he was sen- are 'sentenced federal district courts under the tenced scheme out- year, each “[precedential and Harp. decisions lined in United States v. See 406 (4th Cir.2005). Bousley in August pointed language On Court’s court, banc, reversed Engle sitting en equita- the and its historic limitation of Simmons, expressly- in decision panel tolling extraordinary ble circumstances treatment Harp overruling and this court’s Holland a See beyond petitioner’s control. offender Florida, career predicate convictions Simmons, (2010). enhancements. 177 L.Ed.2d In disregarding not file motion to Whiteside did his institutions, prerogatives of other of Simmons light vacate his sentence would invite additional collateral attacks after May years almost two until long after convictions were final and when- final. the rele- conviction But became change arguable import ever a in law of 2255(f) period vant limitations might appear. Every statute of limitations final, not the conviction is year one after contemplates by possibility definition the a year from a decision that effectuates one development that some after the favorable change in circuit law. period might legis- occur. The entrust- lative branch our three, appreciate point, suppose

To between the ends of ed to set balance a five, passed had years or ten between safeguarded by and the ac- equity values final time becoming and the conviction final due It is cording judgments effect. in circuit change some law occurred. when or not our office to reset recalibrate argument, adopt If we were to judgment in the case at bar. The balance change a in circuit law there is whenever (whatever must is), accordingly of the district court magnitude of sufficient affirmed because the herein year have a to file after petitioner would timely filed.3 many years change, passed if had even final. That the conviction became since AFFIRMED point statutes simply vitiates the par- general limitations in this one GREGORY, Judge, dissenting, Circuit ticular, evidence namely that relevant DAVIS, Judge, whom Senior Circuit with missing. changes not be stale or Even joins: facts, statutes applied law must be be- limitation the risk of claims reduce It majority today makes a choice. accurately litigated long after ing less powers not to exercise its has chosen fact. recently equity—which gross injustice affirmed—and to allow just how briefly summarizing

It bears Deangelo against be committed Whiteside. upon trench much Whiteside has been Nobody disputes Whiteside find institutions to prerogatives of other erroneously designated career offender. in these circumstances. equitable tolling Still, majority insists that he cannot Congress’s circumvent Petitioner would our As result of challenge mistake. limitations, which statute of highly refined decision, eight 2255(f)(3) faces least §in when specifically sets forth unjust It is years prison. simply in more change a result tolling would lie as opportunity to re- deny someone the law, mani- petitioner which has criterion I properly calculated sentence. would ceive festly satisfy. failed to Petitioner Supreme must dissent. disregard further us have advocacy express quality of case. appreciation their 3. The court wishes to its Amy Ray for the fine both Ann Hester 188 Instead,

Make no mistake that we possess the we should a tradition in ] “follow! power grant equitable Whiteside the which courts of equity sought have to ‘re- and, indeed, relief he seeks to which he is which, hardships time, lieve from time to entitled. The specifically arise from a hard and fast adherence’ to ability years addressed our to do so a few rules, which, legal more absolute if strictly Florida, ago in Holland v. when reaf applied, rigid- threaten the ‘evils of archaic ” ” “presumption firmed a equita Hazel-Atlas, ity.’ (quoting Id. 322 favor U.S. bly tolling AEDPA’s statute of limitations. 248, 997). at 64 S.Ct. 631, 646, 2549, 560 U.S. 130 S.Ct. 177 this, Despite majority does exactly (2010) (emphasis original) L.Ed.2d 130 what Holland against by warns applying a quotation marks “In rigid rule that results in gross injustice. AEDPA,” the case of wrote the It our own mistake that resulted in “the presumption’s strength is reinforced Whiteside’s classification aas career of- by the ‘equitable principles’ fact that have fender, finally which we corrected in Unit- traditionally ‘governed’ the substantive law (4th ed States v. 649 F.3d 237 corpus____” habeas Id. (quoting Munaf Cir.2011) (en banc). By that point, howev- Geren, 553 U.S. 128 S.Ct. er, already Whiteside had been sentenced 2207, (2008)). 171 L.Ed.2d 1 noting While under a regime that wrongly turned a purpose AEDPA’s basic eliminating de eye blind particular circumstances lays, the Court clarified that the statute predicate defendant’s convictions. displace law, was never meant “prior The career offender enhancement—for petition’s under which a timeliness was nobody disputes Whiteside is now always equitable determined under princi legally ineligible—increased his Sentencing ples.” 648, Id. at 130 S.Ct. 2549. The range Guidelines from 140-175 months to extraordinarily Court was clear: AEDPA’s 262-327 months. government-re- After a statute of limitations “does not set forth quested departure, downward he was sen- ‘an inflexible requiring rule dismissal ” tenced to 210 months. Had Whiteside re- whenever’ its 645, ‘clock has run.’ Id. at ceived an identical departure downward 130 S.Ct. (quoting Day 2549 v. McDon enhancement, without the he would have 198, ough, 208, 126 547 1675, 164 U.S. S.Ct. received a sentence 112 months. This (2006)). L.Ed.2d 376 difference of than eight years more pres- The Court in specifically reject- Holland precisely ents the kind of “situation!] majority’s ed the approach equitable equitable [that] demand[s] intervention ... tolling in ways. First, two it made clear to correct ... particular injustice!.]” [a] that courts must be flexible and exercise Holland, 650, U.S. 130 S.Ct. 2549 equitable their powers on a case-by-case Hazel-Atlas, (quoting 248, 322 U.S. at basis blindly instead of following “mechani- 997). S.Ct. 650, cal rules.” Id. at (quot- S.Ct. 2549 ing Armbrecht, Rather than Holmberg 392, Supreme Court, heed the 327 U.S. 396, (1946)). majority L.Ed. constructs for itself and then Second, a court is not hides behind false inexorably doing barriers to what bound to past precedent follow I right. when of course doing recognize so would that we “ prevent it from ‘according] previously all found that futility the relief of a necessary to correct ... particular injus- petitioner’s claim does not constitute a cir- ” tices.’ Id. (quoting Hazel-Atlas cumstance external justifying Glass to his control Co., Co. v. Hartford-Empire untimely section 2254 petition. Minter (1944)). Beck, Cir.2000). L.Ed. 1250 2014). 6, However, (proposed May too much majority places the Commission The 46,000 projects eligi- over offenders will be given the on Minter reliance ble for resentencing, though not career Indeed, later Holland decision.1 Court’s develop- offenders like Whiteside.2 This claim concluding that should Whiteside’s only ment—which takes with the effect barred, majority primarily the relies approval majori- Congress'—exposes See, upon prior cases decided Holland. ty’s hyperbolic Although tendencies. Bousley 523 U.S. e.g., majority equitable tolling por- accuses 1604, 614, L.Ed.2d 828 resources,” tending “a tectonic shift of (1998); Isaac, 107, Engle 456 U.S. Maj. Op. 186-87, apparently legisla- at our (1982). 1558, 71 L.Ed.2d 783 Cer- S.Ct. tive disagrees. branch tainly was aware of its “the safeguard- When it comes to values yet precedent, empower still chose own by ed final according judgments due ef- to exercise when faced courts discretion fect,” Maj. at I Op. concur with Corn might that with individual circumstances gress finality gives way that to fairness. Holland, 560 special “warrant treatment.” And the 2014 Guidelines amendments do Although at U.S. time mark the first our correctly “[n]othing majority observes necessary steps has found it to take to- holdings” the[ ] in Holland undermines wards reducing the draconian effects of Engle, Maj. Op. at it Bousley and our In sentencing laws. after realiz- prohibits nothing true that Holland also ing percent eighty that over of crack co- Court, despite Bousley and Engle, Americans, caine were defendants African justice doing through nonetheless from Congress took action correct what had equitable powers. its exercise of developed discriminatory sentencing as a majority attempts furthermore Sentencing scheme by passing Fair justify position by contending equi- its Blewett, Act. See United States claim tolling table Cir.2013) (en banc) (Moore, supposedly holy principle thwart J., (noting concurring) prior upon pre- as well finality, as “trench Act, average drug “the federal sentence Maj. Op. of other rogatives institutions.” forty-nine per- for Americans African at This is untrue. Just this simply drug average cent than the federal longer year, Congressional man- pursuant its Caucasians”). also for It has sentence date, Sentencing the United States Com- year been than one since our execu- more mission issued retroactive amendments to mandatory- tive to enforce branch declined that will reduce the base drug the Guidelines of- penalties minimum low-level fenses, drug which, according Attorney level for offenses offense certain to our General, Sentencing disproportionately Guidelines United affect commu- two. See Courts, 25,996, 26,004 Fed.Reg. nities of color.3 Release, Sentencing glaringly ma- 2. See News U.S. 1.I find inconsistent Comm’n, Sentencing Unani- U.S. Commission against "invitfing] jority warn additional mously Delayed Allow Retroactive Votes to attacks,” Maj. Op. at 187 while si- collateral (July Drug Trafficking Reduction in Sentences multaneously penalizing Whiteside for not 1B1.10(a)(2)(A). 18,2014); U.S.S.G. bringing petition in the a meritless time be- decided, Maj. Op. see fore Simmons was General, Holder, Attorney Re- 3. See Eric ("[Njothing prevented Whiteside from Meeting marks Annual of the American at the filing one-year within the statute Delegates (Aug. House Bar Association's limitations.”). ("We 2013) reality must also confront they’re system'—people in the that—once Cal., My point 345, 350, is that the statistical deck was Cnty., Santa Clara 411 U.S. 1571, (1973) against Deangelo stacked Whiteside from S.Ct. 36 L.Ed.2d 294 (quot Nelson, Then, ing 286, 291, beginning. our mistake in cast- Harris 394 U.S. 1082, (1969)). ing him a him L.Ed.2d 281 relegated career offender Not then, surprisingly, longer imprisonment. even term of In Court has “ mistake, repeatedly affirmed that ‘the principles the face of this it is ironic that our ” comity finality informing’ proce branch of is the one dragging dural corpus pro restrictions on habeas equal justice its feet on the road towards “ ceedings yield imperative ‘must the law. Rather than take the correcting fundamentally unjust’” pun slightest step defense of a citizen’s liber- Delo, Schlup 298, ishment. 513 U.S. ty, up say, throw our hands and “too 320-21, 851, 115 S.Ct. little, 130 L.Ed.2d 808 too late.” And for what reason? To (1995) Carrier, (quoting Murray v. society avoid chaos that would befall if 478, 495, U.S. 106 S.Ct. 91 L.Ed.2d imprisoned according criminals were ato (1986)). according “the necessary relief understanding correct of the law? particular injustices,” correct ... I dissent. recently made plain that there exists a “presumption in favor” of WYNN, Judge, dissenting: Circuit equitably tolling statutes of limitations to will, The majority opinion without a corpus petitions. habeas Holland v. Flori doubt, “drive eyes citizens to their rub[] da, 560 U.S. their scratch[ ] heads.” United States (2010) (internal L.Ed.2d 130 quotation Foster, (4th Cir.2012) marks and citation (Wilkinson, J., concurring in denial of re- This is a case that yielding demands a banc). hearing en “If one inquire were to “mechanical rules” favor of “the relief objectively of an person reasonable on the necessary to correct” a mistake of our own street whether” a court should allow the making. Deangelo Id. Whiteside was sen- correction of a mistake caused tenced aas career criminal in July 2010. solely by its own error—an error that will August In with United States v. Sim- likely eight years cost a man of freedom— mons, (4th Cir.2011) (en 649 F.3d 237 no doubt the “response citizen’s would be banc), this Court misinterpre- corrected its ” Why you ‘Of course. do ask?’ Id. tation of law that had led courts Habeas corpus allows courts “‘to cut ignore particular Circuit to circum- through procedural barriers of form and stances of predicate defendants’ convic- ” mazes’ to effectuate the writ’s ultimate sentencing purposes. tions for Undisput- purpose: safeguarding individual freedom edly, in light of Whiteside was against lawless state action ensuring criminal, no career and his enhanced “ca- “that miscarriages justice ... are sur- reer criminal” premised sentence was ” faced and Hensley corrected.’ v. Mun. this Court’s interpretation erroneous Dist., San Jose Milpitas Judicial the law. Accordingly, May White- punishments color often face bring harsher than future claims of ineffective assistance peers just their unacceptable— This isn’t Release, Dep’t counsel. See Press shameful.”). Recently, it is the Justice De- Justice, Attorney General Holder Announces

partment expressed also its confidence ain Policy Department's New to Enhance Justice process by robust announcing habeas a new Support Right Commitment to Defendants' policy longer that it will no ask criminal de- (Oct. 14, 2014). Counsel plead guilty fendants who right to waive the significant injury. court cause This is why the district to vacate petitioned side Justice, anthropomorphization than a our But because more she is his sentence. blindfold, sentencing, wearing not running since and year passed had tardy. Denying was deemed shoes.” Id. relief for the sake of Whiteside’s where, finality particularly refuses to set aside that is nonsensical Today, this Court here, equity. purely legal in the name of is a time bar issue one with formalistic evidentiary spoliation problems, no or law nor facts Strikingly, neither the sentence is thus skirts comity federal and All has changed. have case concerns, cost of incarcerating the financial law. changed interpretation of the is our spend not years Whiteside for he should words, forgot In other we either that “it’s jail surely enormous, is the work asso- job balls and strikes”—or we our to call correcting ciated with Whiteside’s sen- wrong. call dead simply got the Confirma- tence—something not even perhaps neces- Hearing tion on the Nomination of John G. see, sitating resentencing hearing, formal Roberts, to Be Chief Justice of the Jr. Hadden, e.g., United F.3d Hearing Before the S. United States: (4th Cir.2007)—is likely minimal.2 Comm, Judiciary, Cong. 109th on the (2005) (statement Judge John Rob- G. judges “Even are appellate endowed Jr.). erts, Regardless whether expectation brains hope with in the judicial grounded Court’s error was ac- they will used to obvious purpose.” mistake, certainly tivism or an honest it Foster, (Wilkinson, J., at 394 F.3d Deangelo fault—yet not banc). concurring rehearing en denial today majority stunning comes to the If rectifying a mistake of our own cre- pay price.1 that he must conclusion eight a man years ation—one that will cost of his freedom—does not constitute an Further, interests at stake the other know purpose,” “obvious I do not what finality. interest In- eclipse here our Respectfully, does. I dissent. deed, only or finality “if were our even important goal, more institutional any postconviction relief permit

would not States, 724

at all.” Hawkins v. United (7th Cir.2013) (Rovner, J., It

dissenting rehearing). from denial of is rather is finality, but “fairness [that] system justice,”

the lifeblood of our

“justice ability rectify sub- requires judicial

stantial uncontroverted errors applying err in spills 2. The did not majority opinion The ink district court considerable pre-Simmons law and White- explaining why judiciary bear case should not was ours and ours side as did. The error the burden of its own mistake. Those who majority’s (over-)sentenced decision surely alone. To the extent the wrongly were will deny its relief stems from reluc- sleep knowing that the are not habeas easier courts court's many the district dutiful being tance reverse too “tickets overworked precedent, application Circuit being prison Ante at 186. of Fourth resentenced.” misguided. majority's When an wrongly-imprisoned after decision staff that must look stake, every liberty I is at taxpayers individual’s to mention the defendants—not colleagues court (wrongful) that our district hefty for their confidence who foot the bill however, appellate court our role as incarceration—might, issue understand that take errors, including our own. legal majority’s correct with the calculus.

Case Details

Case Name: Deangelo Whiteside v. United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 19, 2014

Citation: 775 F.3d 180

Docket Number: 13-7152

Court Abbreviation: 4th Cir.