Deangelo Whiteside v. United States , 748 F.3d 541 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7152
DEANGELO MARQUIS WHITESIDE,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00069-MR-1; 1:12-cv-00118-MR)
Argued: January 29, 2014 Decided: April 8, 2014
Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded for resentencing by published opinion.
Judge Gregory wrote the majority opinion, in which Senior Judge
Davis joined. Senior Judge Davis wrote a separate concurring
opinion, and Judge Wilkinson wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Circuit Judge:
This case presents the question of whether a federal inmate
may use a 28 U.S.C. § 2255 motion to challenge a sentence that
was based on the career offender enhancement under the United
States Sentencing Guidelines when subsequent case law reveals
the enhancement to be inapplicable to him. We find that he may,
and in doing so hold that the mistake results in a fundamental
miscarriage of justice that is cognizable on collateral review.
For the reasons stated below, we grant a certificate of
appealability, vacate the petitioner’s sentence, and remand the
case for resentencing.
I.
The facts relevant to this appeal are brief and largely
undisputed. In July 2009, the petitioner-appellant, Deangelo
Whiteside, was indicted on charges of possession with intent to
distribute at least 50 grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1). Shortly thereafter, the government filed
an Information pursuant to 21 U.S.C. § 851 notifying Whiteside
that it intended to seek an enhanced penalty based on a 2002
North Carolina felony drug conviction.
Whiteside then entered into a plea agreement with the
government. The agreement acknowledged the possibility that
Whiteside might be designated a career offender under U.S.S.G.
2
§ 4B1.1. It also contained several waivers of Whiteside’s
rights to challenge his conviction and sentence in an appeal or
collateral proceeding. As discussed in more detail below, the
parties dispute whether these provisions bar Whiteside’s current
claim.
Whiteside pled guilty to the offense in October 2009 and
the probation office began preparing a presentence report. The
probation officer concluded that Whiteside was responsible for
1,951.9 grams of powder cocaine and 468.3 grams of crack
cocaine, generating a base offense level of 32. 1 The probation
officer also determined that a 1999 North Carolina conviction
for felony possession with intent to sell and deliver cocaine,
along with the 2002 drug conviction, qualified Whiteside for the
career offender enhancement under § 4B1.1. 2 The enhancement
1
The probation officer disagreed with the government’s
stipulation in the plea agreement that Whiteside would be held
responsible for more than 50 and less than 150 grams of crack
cocaine.
2
The career offender enhancement defines a “career
offender,” and provides that a defendant is such an offender if
(1) [he] was at least eighteen years old at the time
[he] committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and (3) [he] has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(a). For purposes of the enhancement, a “prior
felony conviction” includes “a prior . . . state conviction for
(Continued)
3
raised Whiteside’s base offense level to 37 and his criminal
history category from V to VI. After a three-level reduction
for acceptance of responsibility, Whiteside’s Sentencing
Guidelines range was 262 to 327 months in prison. In light of
the government’s § 851 Information, the prior felony drug
convictions also subjected Whiteside to a mandatory minimum term
of imprisonment of twenty years.
Prior to Whiteside’s sentencing hearing, the government
filed a § 5K1.1 motion seeking a downward departure based on the
petitioner’s substantial assistance. The government recommended
that Whiteside receive a sentence based on a total offense level
of 32 and a criminal history category VI, which yielded a 210 to
262 month Guidelines range. The district court granted the
government’s motion and, on July 9, 2010, sentenced Whiteside to
210 months’ imprisonment, a sentence below both his Guidelines
range and the twenty-year mandatory minimum.
On August 17, 2011, this Court issued its en banc decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). In
Simmons, we overruled circuit precedent and held that a North
Carolina conviction is a crime punishable by a term of
an offense punishable by . . . imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony.” Id. § 4B1.2 cmt. n.1.
4
imprisonment exceeding one year only when the defendant’s
particular criminal history and the nature of his offense so
warrant. See id. at 247 & n.9. It is undisputed that under
Simmons, Whiteside’s predicate convictions were not punishable
by more than a year in prison, and were he sentenced today he
would not be subject to either the career offender enhancement
or the twenty-year statutory minimum penalty.
Whiteside argues that without those enhancements he would
have faced a Guidelines range of 140 to 175 months and a
statutory term of ten years to life. Assuming the same downward
departure based on substantial assistance – eighty percent of
the low end of the Guidelines – Whiteside contends that his
sentence would have been 112 months, roughly eight years shorter
than the sentence he received.
On May 18, 2012, Whiteside filed a 28 U.S.C. § 2255 motion
to vacate his sentence. He argued that, in light of Simmons, he
did not qualify as a career offender and that he should be
resentenced without the enhancement. 3 The district court
dismissed Whiteside’s motion to vacate, concluding that it was
untimely, that Whiteside waived his right to collaterally attack
3
Whiteside subsequently filed a supplement to his motion to
vacate, making the same arguments, but seeking, in the
alternative, relief under 28 U.S.C. § 2241, a writ of coram
nobis, and a writ of audita querela.
5
his sentence in his plea agreement, and that he was not eligible
for post-conviction relief because he received a sentence
beneath the statutory maximum. The district court also declined
to issue a certificate of appealability. This appeal followed.
II.
A.
We must first address whether Whiteside’s motion to vacate
is procedurally barred. The first question on this point is
whether Whiteside in his plea agreement waived his right to
collaterally attack his sentence. We review this issue de novo.
See United States v. Copeland, 707 F.3d 522, 528 (4th Cir.
2013).
The relevant portions of Whiteside’s plea agreement are as
follows:
20. Defendant, in exchange for the concessions made
by the United States in this plea agreement,
waives all such rights to contest the conviction
except for: (1) claims of ineffective assistance
of counsel or (2) prosecutorial misconduct.
Defendant also . . . knowingly and expressly
waives all rights conferred by 18 U.S.C. § 3742or otherwise to appeal whatever sentence is
imposed with the two exceptions set forth above.
Defendant also reserves right to appeal ruling as
to career offender pursuant to USSG § 4Bl.l.
21. Also, in exchange for the concessions made by the
United States, defendant agrees that the United
States preserves all its rights and duties with
respect to appeal as set forth in 18 U.S.C.
§ 3742(b), while the defendant waives all rights
6
to appeal or collaterally attack the sentence of
conviction with the two exceptions set forth
above.
The government contends that under these terms, Whiteside
waived his right to collaterally attack his sentence on all
grounds except that of ineffective assistance of counsel or
prosecutorial misconduct. We disagree, finding that the
language of the plea agreement is ambiguous and does not clearly
specify which rights were waived.
In short, the paragraphs quoted above contradict one
another. Paragraph 20 states that the defendant may challenge
his conviction only on the two grounds just mentioned. It goes
on to state that the defendant retains his right to appeal his
sentence with respect to the career offender enhancement.
However, paragraph 21 then states that he may only challenge his
sentence (through either a direct appeal or § 2255 motion) on
ineffective assistance or prosecutorial misconduct grounds.
This simply does not make sense. Either the parties intended to
limit the defendant’s right to challenge his sentence to two
grounds, a result which would render the career offender
reference at the end of paragraph 20 superfluous, or the
statement in paragraph 21 limiting Whiteside’s rights to
challenge his sentence to two grounds was a mistake and should
instead have cited three possible bases for a challenge. Either
reading is problematic, leaving it impossible to say exactly
7
which rights Whiteside waived. When a plea agreement is
unclear, it must be construed against the government. See
United States v. Jordan, 509 F.3d 191, 199-200 (4th Cir. 2007).
As such, we hold that Whiteside did not waive his right to
challenge the career offender enhancement in a collateral
proceeding.
B.
We next consider whether Whiteside’s motion to vacate was
timely. A § 2255 petitioner ordinarily has one year from the
date on which his conviction becomes final in order to file a
motion to vacate. 28 U.S.C. § 2255(f(1). Whiteside’s
conviction became final on August 17, 2010, but he did not file
his motion until May 18, 2012, well beyond the one-year period.
However, the statute of limitations in § 2255(f)(1) may be
equitably tolled in certain circumstances. Specifically,
equitable tolling applies if the petitioner can show “‘(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)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Relief
is limited to cases “where – due to circumstances external to
the party’s own conduct – it would be unconscionable to enforce
the limitation period against the party and gross injustice
8
would result.” United States v. Sosa, 364 F.3d 507, 512 (4th
Cir. 2004).
As explained below, we find that the erroneous application
of the career offender enhancement worked a gross miscarriage of
justice. We also hold that Whiteside pursued his rights
diligently by filing his motion within a year of our decision in
Simmons and that extraordinary circumstances prevented him from
filing the motion earlier. Our decision is based on the simple
fact that our case law prior to Simmons absolutely foreclosed
Whiteside’s current argument. In United States v. Jones, 195
F.3d 205 (4th Cir. 1999), and then again in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), we rejected the arguments
that we later accepted in Simmons. Had Whiteside filed a habeas
petition prior to Simmons it would have been summarily denied on
the basis of these decisions, as was the case for numerous other
petitioners. See, e.g., Robinson v. United States, No. 5:07-cv-
140, 2011 WL 676184 (E.D.N.C. Feb. 18, 2011); Jordan v. United
States, No. 1:09-cv-816, 2010 WL 2347076 (M.D.N.C. June 3,
2010). We think this condition – the complete lack of any
chance at success – constitutes an “extraordinary circumstance”
that warrants equitable considerations. The obstacle was
clearly external to Whiteside – indeed, it was our incorrect
interpretation of which North Carolina convictions support the
career offender enhancement that prevented him from seeking
9
relief. Once this was corrected and Whiteside had an
opportunity for meaningful review, he filed his motion in a
timely manner. This is not a case of a petitioner who has slept
on his rights and later seeks relief from his indolence;
instead, once Whiteside’s right to review obtained any real
significance, he acted.
The government nevertheless contends that Whiteside should
have filed his petition prior to Simmons in spite of its sure
defeat. In addition to simply having an air of absurdity about
it, this argument would lead to the perverse result of reading
the AEDPA’s time limitations to encourage inmates to flood the
courts with baseless petitions on the off chance that the law
might one day change. Further, if Whiteside had filed his
petition prior to Simmons and it had been denied, his current
claim would possibly be barred as a successive petition. See
§ 2255(h). 4 Given the timing of Whiteside’s conviction and our
decision in Simmons, the result of the government’s position is
that at no point would Whiteside have been entitled to relief
4
We expressly do not decide whether the savings clause in
§ 2255(e) might justify relief from a Simmons sentencing error
through the filing of a § 2241 petition. While we have not
previously “extended the reach of the savings clause to those
petitioners challenging only their sentence,” United States v.
Poole, 531 F.3d 263, 267 n.7, 274 (4th Cir. 2008), we note that
the Eleventh Circuit recently permitted a federal inmate to use
§ 2255(e) to bring a § 2241 petition challenging the legality of
his sentence. Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013).
10
from an error that we consider to be a fundamental miscarriage
of justice. We cannot accept such an outcome.
Nor are we bound to. We recognize that we previously held
that the futility of a petitioner’s claim does not constitute a
circumstance external to his control. Minter v. Beck, 230 F.3d
663, 666 (4th Cir. 2000). However, our decision in Minter
preceded the recent Supreme Court decision in Holland, which
adopted an expansive reading of the role of equity in habeas
cases. In Holland, the Supreme Court reviewed an Eleventh
Circuit rule holding that attorney negligence in failing to meet
a filing deadline may never serve as a basis for equitable
tolling absent a showing of bad faith or dishonesty on the part
of the attorney. 560 U.S. at 644. The Court rejected this rule
as overly rigid. Noting equity’s longstanding role in habeas
relief, the Court stated that principles of equitable tolling
are consistent with the “AEDPA’s basic purpose of eliminating
delays . . . without undermining basic habeas corpus principles
and by harmonizing the statute with prior law, under which a
petition’s timeliness was always determined under equitable
principles.” Id. at 648. In light of this, the Court held that
the AEDPA’s statutes of limitations “do[] not set forth ‘an
inflexible rule requiring dismissal whenever’ its ‘clock has
run.’” Id. at 645 (quoting Day v. McDonough, 547 U.S. 198, 205
(2010)). The Court further explained that, while courts of
11
equity are of course governed by “rules and precedents,” equity
also requires “flexibility” and the avoidance of “mechanical
rules.” Id. at 649-50 (internal quotation marks and citations
omitted); see also id. at 650 (courts must “exercise judgment in
light of prior precedent, but with awareness of the fact that
specific circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case”).
Although Holland dealt with attorney misconduct, an issue
not before this Court, the decision’s broader point was that the
“exercise of a court’s equity powers . . . must be made on a
case-by-case basis . . . .” Id. at 649-50; see also Jones v.
United States, 689 F.3d 621, 626-28 (6th Cir. 2012) (citing
Holland and applying equitable tolling where inmate filed
petition within three months of Supreme Court’s decision in
Begay v. United States, 553 U.S. 137 (2008), entitling him to
relief). To the extent Minter created a bright-line rule that
futility may not constitute an extraordinary circumstance,
Holland requires that we at least apply such a rule on a case-
by-case basis. 5
5
Moreover, the factual differences in the cases aside, our
outcome is entirely consistent with Holland. Indeed, the
circumstances here are arguably more compelling, given that
attorney errors are generally attributable to clients, see
Holland, 560 U.S. at 656 (Alito, J., concurring) (citation
omitted), while this case deals with our own error in
(Continued)
12
When examining the particular circumstances of Whiteside’s
case, we find that he satisfies the requirements necessary for
equitable tolling. He has successfully demonstrated that his
sentence amounted to a fundamental miscarriage of justice.
Correcting unjust incarcerations is the whole purpose of § 2255.
As the Supreme Court explained in Holland, the AEDPA’s time
limitations do not foreclose this relief to all those who are
unable to meet the statute’s deadlines. Had Whiteside filed
within the one-year statute of limitations, he likely would have
been forced to suffer the injustice with no future chance at
relief. The timing of our decisions should not be the sole
determinant of a petitioner’s access to justice. Whiteside’s
inability to obtain meaningful relief prior to our decision in
Simmons is an extraordinary circumstance that warrants some
flexibility on our behalf in order “to accord all the relief
necessary to correct . . . particular injustices.” Id. at 650
(quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
238, 248 (1944)). 6 Accordingly, we equitably toll the
limitations period and review Whiteside’s claim.
interpreting prior case law. There is no similar justification
for punishing a petitioner for our mistake.
6
Indeed, even the government recognizes that on a case-by-
case basis, Simmons relief should be afforded to some
(Continued)
13
III.
Turning to the merits of the case, we are asked to decide
whether a petitioner may challenge his sentence on collateral
review based on an incorrect application of the career offender
enhancement. Because it is the only response that is both
consistent with the realities of federal sentencing and just, we
answer yes.
Section 2255 allows federal prisoners to move to set aside
sentences that are imposed “in violation of the Constitution or
laws of the United States.” Thus, § 2255 relief is not limited
to constitutional errors. See Davis v. United States, 417 U.S.
333, 345-56 (1974). However, a non-constitutional error may
only serve as a basis for collateral attack when it involves “a
fundamental defect which inherently results in a complete
petitioners notwithstanding limitations or appeal waivers. See
Mungro v. United States, Nos. 5:11-cv-141-RLV & 5:04-cr-18-RLV-
CH-1, 2013 WL 6800822, at *6-*7 & n.3 (W.D.N.C. Dec. 23, 2013)
(granting § 2255 motion to vacate the prisoner's mandatory life
sentence on Simmons grounds, and noting that the government had
waived “reliance on the statute-of-limitations defense”);
Sturvidant v. United States, Nos. 3:12-CV-66-FDW & 3:09-cr-39-
FDW-6, 2013 WL 6669025, at *1, *3 (W.D.N.C. Dec. 18, 2013)
(granting Simmons relief after government “declined to enforce”
the defendant’s plea-agreement waiver of the right to
collaterally attack his sentence). As the government apparently
concluded in Mungro, we conclude that in this case “it would be
unconscionable to enforce the limitation period against the
[petitioner] and gross injustice would result” were we to do so.
Minter, 230 F.3d at 667 (quoting Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000) (§ 2254 case)).
14
miscarriage of justice.” United States v. Addonizio, 442 U.S.
178, 185 (1979) (internal quotation marks omitted). The Supreme
Court has provided only the general contours of what constitutes
a complete miscarriage of justice. For example, in Hill v.
United States, 368 U.S. 424, 429 (1962), the Court reviewed a
sentencing judge’s failure to inform a defendant that he had the
right to speak at his sentencing hearing. The Court
characterized this mistake as a mere failure to follow the
formal requirements of a rule, and held that it did not
constitute a basis for habeas relief. Id.; see also Peguero v.
United States, 526 U.S. 23 (1999) (failure to inform defendant
of the right to appeal where defendant knew of the right);
United States v. Timmreck, 441 U.S. 780 (1979) (failure to
mention a special parole term at Rule 11 hearing). In contrast,
in Davis the Court held that a post-conviction change in the law
that rendered the defendant’s conduct no longer criminal is
correctable on collateral review because “[t]here can be no
doubt that such a circumstance inherently results in a complete
miscarriage of justice . . . .” 417 U.S. at 346 (internal
quotation marks omitted).
Like a number of our sister circuits, we have held that
“ordinary misapplication of the guidelines does not amount to a
miscarriage of justice.” United States v. Mikalajunas, 186 F.3d
490, 496 (4th Cir. 1999) (collecting cases); see also United
15
States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999).
However, we have not offered a considered explanation of what
constitutes an “ordinary” Guidelines error as opposed to
something more fundamental. In Mikalajunas, we held that an
improper two-level enhancement for restraint of the victim did
not amount to a complete miscarriage of justice. 186 F.3d at
496. In Pregent, we considered whether a defendant whose
criminal history had been wrongly calculated resulting in a
sentence four months too long was entitled to seek relief from
the supervised release portion of his sentence. 190 F.3d at 283
& n.4. Although we assumed that the error was cognizable on
collateral review, we dismissed the defendant’s claim as
untimely. We have not had occasion to address the specific
issue presented in this case: whether the career offender
enhancement is so significant that its improper application
amounts to a fundamental miscarriage of justice. 7
7
Our friend in dissent accuses us of running “roughshod”
over circuit precedent. This is demonstrably not the case.
Aside from the fact, explained below, that the career offender
enhancement is plainly not a run-of-the-mill guideline, the
dissent ignores the particulars of our prior cases. In United
States v. Pettiford, 612 F.3d 270, 275 (4th Cir. 2010), the
petitioner filed a motion to vacate his Armed Career Criminal
Act enhanced sentence following a state court vacatur of two of
his predicate offenses. We denied the motion because it was
undisputed that, following the vacatur, the petitioner still had
three remaining ACCA qualifying convictions in his record. Id.
at 276-77. Thus, our statement regarding the availability of
collateral review to correct Guidelines errors was pure dicta.
(Continued)
16
Three courts of appeals have, however, confronted this
precise question, albeit with differing results. In Sun Bear v.
United States, 644 F.3d 700 (8th Cir. 2011) (en banc), the
Eighth Circuit considered the question following the Supreme
Court’s decision in Begay, which limited the category of
defendants eligible for career offender status by narrowing the
definition of a crime of violence. See 553 U.S. at 148. 8 Sun
Bear held that career offender status is an “ordinary question[]
of [G]uideline interpretation,” and that misapplication of this
status is not an error that results “in a complete miscarriage
of justice.” 644 F.3d at 704 (citation omitted). 9
The Seventh Circuit initially reached a different
conclusion. In Narvaez, the court held that because of changes
Likewise, as explained above, in Pregent we assumed that the
petitioner had stated a cognizable claim before dismissing his
petition as untimely. 190 F.3d at 284. Moreover, the
petitioner in Pregent was arguing for the termination of the
supervised release portion of his sentence, a far cry from the
situation confronting Whiteside. Id. at 283.
8
The court first acknowledged that Begay set forth a
substantive rule that could be applied retroactively on
collateral appeal. We need not consider this preliminary issue
with respect to Simmons, since we have previously determined
that Simmons announced a substantive rule that may be raised in
a habeas proceeding. See Miller v. United States, 735 F.3d 141,
147 (4th Cir. 2013).
9
It is worth noting that the sentence imposed in Sun Bear
was within the Guidelines range applicable even in the absence
of the career offender enhancement. Id. at 705.
17
to the law under Begay and Chambers v. United States, 555 U.S.
122 (2009), the defendant “never should have been classified as
a career offender and never should have been subjected to the
enhanced punishment reserved for such repetitive and violent
offenders.” Narvaez, 674 F.3d at 627 (emphasis omitted). The
court deemed the resulting career offender sentence a
miscarriage of justice even though it fell beneath the
applicable statutory maximum. Id. at 629. The court explained:
The imposition of the career offender status branded
Mr. Narvaez as a malefactor deserving of far greater
punishment than that usually meted out for an
otherwise similarly situated individual who had
committed the same offense. It created a legal
presumption that he was to be treated differently from
other offenders because he belonged in a special
category reserved for the violent and incorrigible.
No amount of evidence in mitigation or extenuation
could erase that branding or its effect on his
sentence. His designation as a career offender simply
took as unchallenged a premise that was not true and
gave him no way of avoiding the consequences of that
designation.
Id.
Narvaez, however, dealt with a sentence issued prior to
United States v. Booker, 543 U.S. 220 (2005), when the
Guidelines remained mandatory. Shortly after the Narvaez
decision, the Seventh Circuit limited its holding to sentences
issued under the mandatory Guidelines. See Hawkins v. United
States, 706 F.3d 820, 824 (7th Cir. 2013) supplemented on denial
of reh’g, 724 F.3d 915 (7th Cir. 2013), cert. denied, 134 S. Ct.
181280 (Feb. 24, 2014). In Hawkins, the court held that post-
Booker, Guidelines errors were “less serious,” and that as long
as the sentence imposed was beneath the statutory maximum it was
not subject to correction on collateral review.
The Eleventh Circuit then reached the opposite conclusion
of both the Eighth and Seventh Circuits. In a case that was
recently vacated pending rehearing en banc, Spencer v. United
States, 727 F.3d 1076, 1087 (11th Cir. 2013), vacated pending
reh’g en banc, (11th Cir. Mar. 7, 2014), the court stated that
an erroneous career offender enhancement amounts to a
fundamental miscarriage of justice because “categorization as a
career offender is not merely a formal requirement of a criminal
procedural rule.” This was true because, even post-Booker, “the
Guidelines are the heart of the substantive law of federal
sentencing.” Id. at 1087. Central to the panel’s reasoning was
the Supreme Court’s recent decision in Peugh v. United States,
___ U.S. ___, 133 S. Ct. 2072 (2013).
In Peugh, the Court held that retroactive application of a
Guideline that increases a defendant’s applicable Guidelines
range violates the Ex Post Facto Clause of the Constitution.
Id. at 2084. In the process, the Court reaffirmed the important
role that the Guidelines play in sentences issued post-Booker.
The Court stated that the Guidelines remain “the lodestone of
sentencing,” id., and that “[t]he post-Booker federal sentencing
19
scheme aims to achieve uniformity by ensuring that sentencing
decisions are anchored by the Guidelines . . . .” Id. at 2083(emphasis added). The Court also noted the requirement that
“‘district courts must begin their analysis with the Guidelines
and remain cognizant of them throughout the sentencing
process.’” Id. (quoting Gall v. United States, 552 U.S. 38, 50
n.6 (2007)). The Court explained that this and other hurdles
“make the imposition of a non-Guidelines sentence less likely,”
id. at 2083-84, and that an increase in the Guidelines range
still creates a “significant risk of a higher sentence.” Id. at
2088. In support, the Court cited Sentencing Commission data
showing that, absent a government motion for a variance, roughly
eighty percent of defendants since 2007 have received within-
Guidelines sentences. Id. at 2084.
Relying on the Supreme Court’s recent pronouncements and
citing additional statistical data concerning the career
offender enhancement, the Spencer panel held, “[w]e cannot
pretend that, because of Booker, career offender status no
longer matters to sentence length.” 727 F.3d at 1088. Instead,
“an erroneous career offender Guideline calculation, even though
20
advisory, . . . can amount to a fundamental defect in the
sentencing analysis.” Id. at 1088-89. 10
We agree with the Spencer panel’s reasoning and hold that
an erroneous application of the career offender enhancement
amounts to a fundamental miscarriage of justice that is
cognizable on collateral review. By no rubric can the impact of
the career offender enhancement be considered “ordinary.” The
Supreme Court has recognized that career offender status creates
“a category of offender subject to particularly severe
punishment.” Buford v. United States, 532 U.S. 59, 60 (2001).
And as cited in Spencer, Sentencing Commission data show the
continued impact of the enhancement on sentences administered
post-Booker. For example, in 2012, the mean sentence for
criminal history category VI non-career offenders was 84 months
and the median was 60 months. For career offenders, those
figures increased to a mean of 163 months and a median of 151
months. For drug trafficking offenses, criminal history
category VI non-career offenders received a mean sentence of 115
10
After Peugh, the panel in Hawkins released supplemental
opinions discussing Peugh’s impact on its case. See 724 F.3d
915 (7th Cir. 2013). Disagreeing with the Eleventh Circuit, the
court upheld its earlier decision that the advisory nature of
the Guidelines prevented the petitioner from obtaining relief.
Id. at 916-17.
21
months and a median of 96 months; those figures jumped to 154
months and 144 months respectively for career offenders.
Whiteside’s case is representative of the enhancement’s
dramatic impact. Absent the enhancement, he would have faced a
Guidelines range of 140 to 175 months; after it was applied, his
range skyrocketed to 262 to 327 months. 11 The district court
eventually departed downward from this range to a period of 210
months; but that is exactly the point: the court departed
downward from what was believed to be the applicable Guidelines
range in fashioning the ultimate sentence. The Guidelines
range, although advisory, retained its anchoring effect
throughout Whiteside’s sentencing. It is just that the anchor
was dropped in the wrong place. The Supreme Court has
recognized this effect, stating that “[e]ven if the sentencing
judge sees a reason to vary from the Guidelines, ‘if the judge
uses the sentencing range as the beginning point to explain the
decision to deviate from it, then the Guidelines are in a real
sense the basis for the sentence.’” Peugh, 133 S. Ct. at 2083(quoting Freeman v. United States, 564 U.S. ___, ___, 131 S. Ct.
2685, 2692 (2011) (plurality opinion)) (emphasis in original).
11
These figures put aside consideration of the statutory
minimum penalty, which, of course, we also know was improperly
applied in light of Simmons.
22
In Whiteside’s case, had the district court begun with the
correct range, it almost certainly would have imposed a
different sentence. Consider that if the court had employed the
same twenty percent downward departure based on substantial
assistance, Whiteside would have received a sentence of 112
months as compared to 210 months. And in the abstract, it is
highly unlikely that any defendant with a Guidelines range of
140 to 175 months who has been granted a § 5K1.1 motion for a
downward departure would receive a sentence 35 months in excess
of the high-end of that range. At the very least, the § 3553
factors supporting such an increase would be subject to rigorous
review under Gall on direct appeal.
It is not by accident that the career offender enhancement
so significantly impacts defendants’ sentences. Unlike most of
the Guidelines, which are based on the policy calculations of
the Sentencing Commission, the career offender enhancement
derives from a congressional requirement. A statute provides
that “[t]he Commission shall assure that the [G]uidelines
specify a sentence to a term of imprisonment at or near the
maximum term authorized” for those who qualify for the
enhancement. 28 U.S.C. § 994(h). Heeding this charge, the
Commission fashioned strict penalties for career offenders:
their criminal history categories are automatically boosted to
VI, the highest possible rung, and their offense levels become
23
tied to the statutory maximum penalty as opposed to the actual
conduct of conviction. See U.S.S.G. § 4B1.1(b). Both factors
contributed to the significant increase in Whiteside’s
Guidelines range.
Clearly then, the impact of the career offender enhancement
is far from ordinary. It is certainly nothing like the two-
level enhancement for restraint of the victim which we rejected
as a source of habeas relief in Mikalajunas. That case presents
a far better example of a garden variety Guidelines adjustment
that, while possibly having an impact on the defendant’s
sentence, cannot be said to constitute a fundamental miscarriage
of justice. In contrast, an enhancement that casts the
defendant as a hopeless recidivist worthy of the strictest
possible punishment, and that has the effect of robbing a
defendant of his freedom for some eight years, is fundamentally
different. 12
The government is certainly correct in remarking that this
case does not present exactly the kind of error recognized by
12
The dissent faults us for failing to provide a “non-
arbitrary” line delimiting the types of sentencing errors that
constitute “extraordinary circumstances.” Post at 47. Given
the inherent folly of attempting to forecast the contours of
“extraordinary” events, our review is quite properly limited to
the case before us, and we decide only that when subsequent case
law makes manifestly clear that a petitioner was wrongly
designated a career offender he may challenge his sentence
through a § 2255 motion.
24
the Supreme Court in Davis. The petitioner in Davis was
convicted for actions later deemed not criminal. 417 U.S. at
346. The Court remarked that “[t]here can be no room for doubt
that such a circumstance inherently results in a complete
miscarriage of justice . . . .” Id. (internal quotation marks
and citation omitted). We reached a similar result in applying
Simmons to vacate a felon-in-possession conviction in Miller.
Here, the instant conviction for which Whiteside was sentenced
remains valid. Regardless, though, Whiteside is almost
certainly serving time he would not be absent the enhancement.
The mere fact that he was properly convicted does not somehow
excuse an obviously legally erroneous sentence. 13
13
The dissent refuses to acknowledge the basic truth
underlying our decision: that Whiteside is not, and was not,
properly designated a career offender. Our sentencing regime
prior to Simmons was overinclusive; it swept up defendants whose
criminal histories, when viewed individually – a general bugaboo
of the dissent – did not expose them to the enhancement.
Simmons corrected this mistake by directing district courts to
examine the specifics of the defendant’s predicate convictions.
Under this approach, there is no question Whiteside should not
have received the enhancement. Simply because a criminal
defendant was at one point classified a career offender does not
mean that classification was ever correct. Neither the Eighth
nor Seventh circuits had any trouble recognizing that by
narrowing the definition of the terms “crime of violence” and
“violent felony,” Begay and Chambers exposed “errors” in how the
Guidelines had been applied. See Sun Bear, 644 F.3d at 704;
Hawkins, 706 F.3d at 823. The effect of Simmons on Whiteside’s
case is no different. This point is underscored by our decision
in Miller finding Simmons to have announced a new substantive
rule retroactive on collateral review. 735 F.3d at 147. In
Miller, we recognized that by “alter[ing] ‘the class of persons
(Continued)
25
Nor does the fact that Whiteside was sentenced beneath the
applicable statutory maximum mitigate the mistake. Contrary to
the government’s contention, this fact alone does not make a
sentence “lawful,” for several reasons. First, such a
conclusion is contrary to our well-established principles of
appellate review. While sentencing review is highly
deferential, that “does not mean there is no review at all.”
United States v. Abu Ali, 528 F.3d 210, 268-69 (4th Cir. 2008).
“If Gall had intended to dispense with any semblance of
meaningful review, there would have been no need for the
decision . . . to direct district courts to ‘correctly
calculat[e] the applicable Guidelines range.’” Id. at 265-66(quoting Gall, 552 U.S. at 49). And when sentencing courts vary
from the Guidelines, they must “consider the extent of the
deviation and ensure that the justification is sufficiently
that the law punishes,’” Simmons had a dramatic impact on the
substantive rights of criminal defendants. Id. at 146 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). The Miller
court had no hesitation in overturning the petitioner’s
conviction – and his accompanying sentence of 72 months,
potentially less time than Whiteside is wrongly serving - even
though the conviction was originally consistent with controlling
precedent. Id. at 143, 147. Given the continued importance of
the Guidelines generally post-Booker, and the impact of the
career offender enhancement in particular, there is no reason,
in theory or in practice, to reach a different result here. At
the very least, there can be no honest question that Whiteside’s
designation as a career offender was in fact “erroneous.”
26
compelling to support the degree of the variance.” Gall, 552
U.S. at 50. We have demonstrated our willingness to vacate non-
Guidelines sentences that are unreasonable in light of the
district court’s explanations. See, e.g., United States v.
Engle, 592 F.3d 495, 505 (4th Cir. 2010); Abu Ali, 528 F.3d at
268-69.
Of course, these standards are utilized only on direct
appeal. But they highlight the rigor with which we view our
role in ensuring that each and every defendant sentenced in
federal court receives a fair and reasonable sentence, to say
nothing of a lawful one.
The animating principles of fundamental justice are no
different here. First, through no fault of his own, Whiteside’s
opportunity for such review did not arise until after the period
in which to file a direct appeal had lapsed. Had Whiteside
challenged his career offender status on direct appeal, his
argument would have been rejected by our pre-Simmons line of
cases. See United States v. Harp, 406 F.3d 242 (4th Cir. 2005);
United States v. Jones, 195 F.3d 205 (4th Cir. 1999). He should
not be punished – and we mean literally punished, as in
additional time spent in federal prison, time which the law does
not countenance – for this fact. Acknowledging that a defendant
would likely be entitled to a vacated sentence on direct appeal
but not on a timely filed habeas motion simply due to the timing
27
of one of our decisions contributes to the conclusion that
denial of review operates a complete miscarriage of justice.
Second, the Supreme Court just last year told us that the
advisory nature of the Guidelines does not cure the harm that
results from utilizing an incorrect Guidelines range as a
starting point. See Peugh, 133 S. Ct. at 2086; see also
Spencer, 727 F.3d at 1087 (“The Seventh Circuit [in Hawkins] may
think that mistakenly categorizing a defendant as a career
offender became not very serious once Booker made the Guidelines
advisory, but the Supreme Court told us in June . . . that the
Guidelines are still ‘the lodestone of sentencing.’” (quoting
Peugh, 133 S. Ct. 2084)) (citation omitted). In Peugh, the
Court ruled that retroactive application of a Guideline violates
the Constitution even when the vacated sentence is beneath the
statutory maximum. The Court stated, “that a district court may
ultimately sentence a given defendant outside the Guidelines
range does not deprive the Guidelines of force as the framework
for sentencing.” Peugh, 133 S. Ct. 2076. And though Peugh
concerned a direct appeal, it found error of constitutional
magnitude, indicating that the mistake also would have been
correctable on collateral review.
In addition to the continued vitality of the Guidelines in
an advisory system, Peugh also drew on the principles of
fairness and justice that animate the Ex Post Facto Clause. Id.28
at 2085 (“[T]he Clause also safeguards a fundamental fairness
interest . . . in having the government abide by the rules of
law it establishes to govern the circumstances under which it
can deprive a person of his or her liberty or life.” (internal
quotation marks and citation omitted) (ellipsis in original));
id. (“[The Clause] does not merely protect reliance interests.
It also reflects principles of fundamental justice.”). We find
that these principles map easily onto our analysis of whether
Whiteside was subject to a fundamental miscarriage of justice.
Because of the career offender enhancement, Whiteside’s sentence
is plainly at odds with what he would receive were he sentenced
today. He is not a career offender, and he should not serve a
sentence that was based on his classification as one. The mere
fact that his sentence was beneath the statutory maximum does
not somehow assuage this fundamental unfairness.
In the face of this clear injustice, the government pleads
that we respect - with something approaching sanctity - the
finality of sentencing decisions. We agree that finality is an
important consideration. It encourages defendants to accept
their punishments and move forward with their lives; as well, it
minimizes the misuse of judicial resources. Perhaps most
importantly, in cases involving victims, finality offers these
individuals some degree of peace of mind and a sense that their
suffering has not been forgotten. But we do not agree that
29
these considerations, to the extent that they apply here, can or
should outweigh the plain injustice that would result from
denying the petitioner what he seeks, which is only a chance to
be sentenced according to the factors that everyone agrees
should apply. Were we to conclude otherwise, we would be
putting “bureaucratic achievement” ahead of our task of ensuring
that all those who come before us receive meaningful review of
their claims. Gilbert v. United States, 641 F.3d 1293, 1337
(11th Cir. 2011) (Hill, J., dissenting). We are more than mere
gatekeepers. Congress has given us the authority on collateral
review to relieve errors that amount to fundamental defects in
process or justice. Erroneous application of the career
offender enhancement works such an injustice, and we will not
turn a blind eye to so obvious an error simply for the sake of
finality. 14
14
Unfortunately, our dissenting colleague sounds the alarm
that after today’s decision no criminal sentence is safe from
collateral attack. The dissent’s attempts to expand our holding
on our behalf could only result from its larger, misguided goal
of convincing the reader that habeas relief is somehow harmed by
its utilization. Somewhat amazingly, the dissent is explicit on
this point. Post at 68. With due respect to our colleague’s
views, habeas review is not merely a deterrent that fulfills its
purpose by its threatened use; criminal defendants are aided
only when it is employed. The dissent would have its own
exaltation of the history of the Great Writ and § 2255 relief
contribute to the mechanism’s futility. Accusing us of Whig
history, the dissent’s approach is rank with the fearful
mistrust of individualized decision-making inherent to
traditional conservatism. The suggestion that district courts
(Continued)
30
Because we find that Whiteside suffered a fundamental
miscarriage of justice, we need not address his additional claim
that the error violated his constitutional rights to due
process. We have, however, considered the constitutional
question to the extent necessary to grant a certificate of
appealability, which has yet to issue in this case. See 28
U.S.C. § 2255(c) (permitting issuance of a certificate of
appealability only where petitioner “has made a substantial
showing of the denial of a constitutional right”) (emphasis
added). A certificate of appealability may issue on a
constitutional question that is “debatable.” Miller-El v.
Cockrell, 537 U.S. 322, 337, 338 (2003). We are satisfied that,
for the same reasons discussed above with regard to the
fundamental defect/miscarriage of justice claim, it is at least
debatable that erroneous application of the career offender
enhancement deprived Whiteside of his liberty in violation of
and future panels of this court cannot discern actual injustices
from less serious errors casts too critical an eye on the judges
throughout our circuit. In short, we simply do not share the
view that the criminal justice system is somehow harmed when
defendants are sentenced according to a proper understanding and
application of the law.
31
his due process rights. We therefore grant a certificate of
appealability. 15
IV.
For the reasons stated above, we hold that equitable
tolling applies to Whiteside’s claim. We also hold that
erroneous application of the career offender enhancement amounts
to a fundamental miscarriage of justice that can be corrected on
collateral review. We grant a certificate of appealability,
vacate Whiteside’s sentence, and remand the case for
resentencing.
VACATED AND REMANDED FOR RESENTENCING
15
Although Whiteside fashioned his due process claim on the
Supreme Court’s decision in Hicks v. Oklahoma, 447 U.S. 343(1980), we think any such claim more aptly derives from Simmons
itself. For this reason, we need not address the government’s
position that the claim is barred by the non-retroactivity
doctrine of Teague v. Lane, 489 U.S. 288 (1989) (holding that
new rules of criminal procedure may not be raised in post-
conviction proceedings), since we have already held that Simmons
announced a substantive rule that is applicable on collateral
review. See Miller, 735 F.3d at 147.
32
DAVIS, Senior Circuit Judge, concurring:
I am pleased to join Judge Gregory’s extraordinarily
compelling opinion, which fully responds to the dissent’s
overwrought and formalistic protestations that our judgment here
presages an end to law as we know it. (Evidently, it is not
enough simply for the dissent to say that there is no
miscarriage of justice shown on this record.)
The dissenting opinion is hopelessly pleased with itself.
This is not surprising, as it prostrates itself at the altar of
finality, draped in the sacred shroud of judicial restraint.
There is much that could be said about the dissenting opinion’s
paean to finality, but one can hardly say it more poignantly or
more persuasively than has Judge Rovner. See Hawkins v. United
States, 724 F.3d 915, 919-25 (7th Cir. 2013) (Rovner, J.,
dissenting from the denial of rehearing), en banc reh’g denied,
725 F.3d 680 (7th Cir. 2013) (Rovner, J., joined by Wood,
Williams, and Hamilton, JJ., dissenting from denial of rehearing
en banc).
In any event, what’s remarkable is that, as viewed through
the lens of our good friend’s dissenting opinion, it is
perfectly fine for the United States Department of Justice,
which is to say the Executive Branch, to bypass supposed
reverence for finality on a case-by-case basis, through waivers
of limitations and other devices, see ante, Maj. op., n.6, but
33
the Third Branch is duty-bound never to acknowledge instances in
which law’s interest in finality must give way to competing
values rooted in our shared abhorrence of manifest injustice. To
devolve to the Executive Branch sole authority to identify a
cognizable miscarriage of justice amounts to judicial
abdication, not judicial restraint. Such an approach enjoys no
legitimate place in our scheme of institutional checks and
balances. The Third Branch’s transcendent role, in our enviable
but imperfect system of criminal justice, is to afford
protection from the loss of individual liberty resulting from
profoundly erroneous decision-making, and not least of all,
erroneous decision-making by the Third Branch itself, as in this
very case.
The dissenting opinion favors what’s “finished” over what’s
“right” and thereby blinks at a profound miscarriage of justice.
It is wrong to do so.
34
WILKINSON, Circuit Judge, dissenting:
Deangelo Whiteside was properly designated a career
offender in the course of his federal sentencing proceedings.
Now, years later, the majority vacates that sentence. In
invalidating Whiteside’s sentence, the majority creates a
circuit split over whether career-offender designations are
cognizable on collateral review, and ignores settled law as to
whether changes in circuit precedent can reset the statute of
limitations for post-conviction review of federal criminal
proceedings.
The majority opinion represents a dramatic expansion of
federal collateral review that is unsupported by law or
precedent. It makes a shambles of the retroactivity doctrines
that have long safeguarded the basic finality of criminal
convictions. It disrupts the orderly administration of our
criminal-justice system.
If it were purely a matter of orderly administration, that
might be an arid basis on which to deny relief. But there was
no injustice done here. Whiteside pled guilty to possession
with intent to distribute at least 50 grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1), and his two predicate felony
drug offenses plainly qualified him for career-offender status
under U.S.S.G. § 4B1.1, a status to which Whiteside did not
object.
35
None of these convictions has ever been invalidated. No
procedural or substantive irregularity ever marked the plea or
sentencing proceedings. In short, Whiteside was sentenced
according to the law as it existed at that time. Absent a
constitutional violation or miscarriage of justice, neither of
which is remotely present here, that is all a criminal defendant
can ask or expect. Moreover, the defendant must raise the
petition in a timely manner, which Whiteside has failed to do.
My colleagues attempt a basic restructuring of the purposes
of collateral review in not one, but two, respects. It is bad
enough that the majority envisions collateral proceedings as a
form of error correction intended, not so subtly, to supplant
direct review. The comparative question the majority poses is
even worse. It inquires whether yesterday’s result was the same
that would or should obtain today. To the contrary, collateral
review is what its name implies: whether the proceedings under
review conformed to law as it instructed at the time. If they
did, the rule of law was honored and upheld, and further inquiry
is impermissible.
Because any other disposition of this case would open
concededly lawful proceedings to endless and untimely collateral
attack, I would affirm the district court’s dismissal of the
petition. For the reasons set forth below, I respectfully
dissent.
36
I.
The majority opinion creates a square circuit conflict over
whether allegedly erroneous career-offender designations in
particular, and what Sentencing Guidelines errors in general,
are cognizable on a 28 U.S.C. § 2255 petition for collateral
review. On one side are the opinions of the Seventh and Eighth
Circuits holding challenges to career-offender designations not
cognizable. See Hawkins v. United States, 706 F.3d 820, 823
(7th Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915(7th Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24,
2014) (No. 13-538); Sun Bear v. United States, 644 F.3d 700,
705-06 (8th Cir. 2011) (en banc). On the other side are my
colleagues in the majority and, until recently, an opinion in
the Eleventh Circuit, see Spencer v. United States, 727 F.3d
1076, 1088-89 (11th Cir. 2013), vacated pending reh’g en banc,
(11th Cir. Mar. 7, 2014) (No. 10-10676). As I see this dispute
as both a primary and threshold issue, I shall address it first.
Like traditional habeas corpus, § 2255 “does not encompass
all claimed errors in conviction and sentencing.” United States
v. Addonizio, 442 U.S. 178, 185 (1979). A trial error that is
neither constitutional nor jurisdictional is cognizable under
§ 2255 only if it constitutes “a fundamental defect which
inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair
37
procedure.” Hill v. United States, 368 U.S. 424, 428 (1962).
Courts have consistently reaffirmed this principle since Hill.
See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993);
United States v. Timmreck, 441 U.S. 780, 783-84 (1979); United
States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999).
As neither Whiteside nor the majority claims that the
district court lacked jurisdiction when it sentenced him as a
career offender, Whiteside’s claim is only cognizable if it
alleges a constitutional error or a fundamental defect resulting
in a miscarriage of justice. Whiteside can satisfy neither of
these requirements.
A.
The heart of collateral review is the correction of
constitutional error. In fact, a certificate of appealability,
which is necessary to appeal from a district court’s final order
in a § 2255 proceeding, requires the petitioner to make “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Whiteside has made no “substantial
showing” of the denial of a “constitutional right.” And even if
he had made such a showing, he could not possibly prevail on the
merits of his claim.
The only colorable constitutional claim even plausibly
available to Whiteside is that he was denied due process in
violation of the Fifth Amendment. But there was no denial of
38
due process here. There is no claim of procedural irregularity
occurring at any point in these proceedings. While the
sentencing regime in force at the time of Whiteside’s sentencing
was later overturned in United States v. Simmons, 649 F.3d 237,
241 (4th Cir. 2011) (en banc), nothing in that case suggests
that Whiteside’s sentence failed to comply with the law in force
at the time the sentence was imposed. The method for analyzing
predicate state-court convictions applied in Whitside’s case had
been affirmed by numerous panels of this court. See, e.g.,
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005); United
States v. Jones, 195 F.3d 205, 207 (4th Cir. 1999). Indeed, the
case that overturned the rule in force at the time of
Whiteside’s sentencing did not occur until August 2011, well
after Whiteside’s own case was finalized in August 2010.
I thus cannot embrace the paradox that a manifestly lawful
criminal proceeding amounts to an unlawful deprivation of due
process. Lawful one day, unlawful the next -– it makes no
sense. The doctrinal hook for Whiteside’s due process
challenge, the Supreme Court’s decision in Hicks v. Oklahoma,
447 U.S. 343 (1980), provides no support for his claim. In
Hicks, the jury imposed a mandatory-minimum 40-year sentence
after being instructed that it was required to do so in light of
the petitioner’s two prior state convictions. Later, the
Oklahoma Court of Criminal Appeals declared the mandatory-
39
minimum law unconstitutional but refused to vacate the
petitioner’s sentence. The Supreme Court reversed, finding that
the petitioner’s due process rights were violated when the
jury’s discretion to sentence below the mandatory-minimum 40-
year term was improperly limited, even though the sentence
imposed was beneath the statutory maximum. See Hicks, 447 U.S.
at 344-46.
Hicks differs markedly from this case: the Hicks jury was
barred from exercising its full sentencing discretion, whereas
the district court here not only recognized that it had
discretion to depart from the Guidelines range, but in fact did
so when it sentenced Whiteside to a below-Guidelines sentence.
This distinction makes all the difference. Whiteside was
entitled to a sentence somewhere between the statutory minimum
and maximum, imposed after the Guidelines range was properly
calculated in accordance with the law that existed at the time.
This he received, and thus there is no violation of any sort
anywhere to be found.
But even if Hicks could be bent and stretched to support
Whiteside’s due process claim, it would still be procedurally
unavailable to him. Under Teague v. Lane, 489 U.S. 288 (1989),
a court may not apply a new rule of constitutional criminal
procedure on habeas except in two narrow and infrequent
instances: where the rule places conduct outside the scope of
40
criminal sanction, see Saffle v. Parks, 494 U.S. 484, 494
(1990), or constitutes a “‘watershed rule[] of criminal
procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding,” id. at 495 (quoting Teague, 489 U.S.
at 311 (plurality opinion)); see also United States v. Martinez,
139 F.3d 412, 416 (4th Cir. 1998) (holding that Teague applies
to § 2255 petitions).
Teague insisted, then, that retroactivity doctrine not
succumb to a severe case of presentism, where a decision later
in time not only becomes the law, but seeks to discredit all
that went before. Thus, a rule is new for Teague purposes if it
was not “dictated by precedent existing at the time the
defendant’s conviction became final.” Graham v. Collins, 506
U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301) (emphasis
and internal quotation marks omitted). A novel “application of
an old rule in a manner that was not dictated by precedent”
counts as a new rule for Teague purposes. Stringer v. Black,
503 U.S. 222, 228 (1992).
Because Hicks does not apply at all to Whiteside’s
situation, let alone squarely address it, Whiteside’s attempt to
extend Hicks would require us to announce and retroactively
apply a new rule of constitutional criminal procedure on
collateral review: namely that a criminal defendant has a
constitutional right to an amended sentence based on later
41
decisional law that calls into question an advisory Guidelines
calculation manifestly correct at the time it was imposed. This
case is thus very different from Miller v. United States, in
which we held that, under the retroactivity principles announced
in Schriro v. Summerlin, 542 U.S. 348 (2004), Simmons was a
substantive rule and thus applied retroactively where the
petitioner’s § 2255 petition alleged actual innocence of a
conviction for firearm possession by a felon. 735 F.3d 141,
145-47 (4th Cir. 2013). Here, by contrast, Whiteside asks us to
announce a novel due process rule that is completely distinct
from Simmons itself.
Furthermore, Whiteside’s proposed new rule would not fit in
either of the Teague exceptions. It does not place any conduct
outside the reach of the criminal law. Nor does it present the
exceedingly rare case of a “watershed rule of criminal
procedure,” since the procedural rule that Whiteside wants us to
announce is not “implicit in the concept of ordered liberty.”
Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401
U.S. 667, 693 (1971) (Harlan, J., concurring in the judgments in
part and dissenting in part)) (internal quotation marks
omitted). Thus, Teague forbids the constitutional relief that
Whiteside seeks.
Seeking to avoid Teague’s restrictions, the majority tries
to hang its constitutional case on Simmons itself and issue the
42
certificate of appealability on that basis. See Maj. Op. at 31
& n.15. But Simmons, even if declared retroactive by Miller, is
a case about statutory interpretation -- namely the
interpretation of federal sentencing law -- not the
Constitution. Given that Hicks is far afield and that any rule
derived obliquely from it cannot possibly be made retroactive
under Teague, Whiteside has no constitutional claim and no
entitlement to a certificate of appealability.
B.
Given that Whiteside has no available constitutional claim,
the majority must show that, in light of Simmons, his sentence
is marred by a fundamental defect that resulted in a miscarriage
of justice. This it cannot do. Although some questions of
federal law are cognizable on § 2255, advisory Guidelines
determinations are not except in the most extraordinary of
circumstances. This is not such a case, and underlying the
majority’s attempt to find Whiteside’s claim cognizable are
three serious and pervasive errors.
First, the majority refuses to recognize that, after United
States v. Booker, 543 U.S. 220 (2005), errors in calculating
Guidelines ranges are “less serious” than they were previously
because the ranges are no longer binding on sentencing judges.
Hawkins, 706 F.3d at 824. The situation might be different if
the Guidelines were still mandatory. But those who fought for
43
so long to escape the binding strictures of Guidelines sentences
cannot now complain that just because they influence sentencing
behavior they must be treated as binding law. Far from binding,
they may not even be presumed reasonable. See Gall v. United
States, 552 U.S. 38, 50 (2007). The majority today refuses to
respect the major tradeoff of the post-Booker regime: now that
the Guidelines are merely advisory, they lack the force of
binding law at the sentencing phase and thus the ability to
activate collateral review. As Justice Sutherland observed, if
laws are not “upheld when they pinch as well as when they
comfort, they may as well be abandoned.” Home Bldg. & Loan
Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J.,
dissenting). The majority disregards this honored maxim and
seeks to have it both ways.
That the Guidelines are advisory is no mere theoretical
point; on remand, the district court will be perfectly free to
impose the exact same sentence on Whiteside. It is notable that
the district court granted Whiteside only a limited downward
departure for substantial assistance, a departure that was
itself broadly discretionary. See United States v. Pearce, 191
F.3d 488, 492 (4th Cir. 1999). From a recommended Guidelines
range of 262 to 327 months, the district court departed by less
than 20 percent from the bottom of the Guidelines range. The
district court could have departed downward significantly more
44
but did not, strongly suggesting that it viewed Whiteside’s
criminal record as serious and the Guidelines range as generally
appropriate.
The scenarios spun by the majority on what might or might
not happen on resentencing are nothing more than rank
speculation. The majority suggests that the district court
would likely be unable to satisfy 18 U.S.C. § 3553’s sentencing
factors and “rigorous review under Gall on direct appeal” if it
departed by 20 percent above the top of the newly calculated
Guidelines range of 140 to 175 months and imposed an identical
sentence of 210 months. Maj. Op. at 23. Quite apart from this
bald attempt to put the hammer to the district court, such
speculation ignores the “broad sentencing discretion” afforded
trial judges, Alleyne v. United States, 133 S. Ct. 2151, 2163
(2013), and the lengthy criminal record described in Whiteside’s
presentencing report that will be available for consideration on
resentencing. Whiteside’s record includes, but is not limited
to, 10 controlled-substances offenses, 7 counts of assault with
a deadly weapon on a government officer, and additional counts
of assault, hit and run, and resisting a public officer --
convictions that Simmons does nothing to undermine. This
lengthy record is impossible to minimize, since, quite
independently of the career-offender designation, Whiteside’s
extensive criminal history caused the presentencing report to
45
recommend a criminal-history category of V. Thus, the
assumption underlying the majority’s ruling -- that but for the
career-offender enhancement Whiteside could have shaved years
and years off his sentence -- is highly questionable.
Second, the majority argues that, because the Guidelines
still exert a substantial influence on sentencing, career-
offender designations are serious enough to be cognizable on
collateral review. No one could deny that the Guidelines are
still influential even after Booker. Mere influence on the
ultimate sentence, however, is insufficient to warrant
correction under § 2255. See, e.g., Daniels v. United States,
532 U.S. 374, 376 (2001) (holding that § 2255 cannot generally
be used to challenge predicate convictions under the Armed
Career Criminal Act of 1984); Addonizio, 442 U.S. at 190(holding that § 2255 is unavailable to prisoner seeking
resentencing when post-sentencing changes in parole release-date
calculations allegedly increased effective sentence beyond that
which original sentencing judge intended); Mikalajunas, 186 F.3d
at 496 (holding that erroneous sentencing enhancement for
restraint of victim was “ordinary misapplication of the
[Guidelines] that does not amount to a miscarriage of justice”).
The majority never explains how the reality of error
correction customarily reserved for direct appeal is to be
reconciled with the broad scope it now proposes for § 2255
46
review. Nor can it, since there is no clear line to
differentiate why this Guidelines calculation is open to
collateral attack and others are not. The majority apparently
believes that career-offender designations are “far from
ordinary” and should be subject to challenge, Maj. Op. at 24,
but why stop there? I cannot fathom. The majority offers no
basis in law for its ruling, and the main reason given is that a
career-offender designation results in a substantially larger
prison term and “casts the defendant as a hopeless recidivist
worthy of the strictest possible punishment.” Id. It is left
to the reader to divine why the application of such a penalty
constitutes “extraordinary circumstances” justifying collateral
review. United States v. Pregent, 190 F.3d 279, 283 (4th Cir.
1999). Every Guidelines calculation may affect the sentencing
range to a greater or lesser degree, and the majority does not
even hint at a non-arbitrary dividing line. Instead of a legal
principle, all we get is the majority’s pronunciamento along
with the irrelevant observation that Congress, as it had every
right to do, outlined the contours of the career-offender
enhancement for those whose extensive history of law-breaking
posed a continuing social threat. See Maj. Op. at 23.
Finally, the majority confuses a change in law favorable to
a defendant with a fundamental breakdown in procedure or
justice. As explained above, Whiteside’s sentence was imposed
47
properly, with no procedural irregularities or substantive
errors. Thus, to hold that Whiteside’s situation warrants
§ 2255 relief implies that every change in law creates a
manifest injustice no matter how lawful the prior proceeding.
But “[p]recedential decisions come pouring out of the federal
courts of appeals and the Supreme Court.” Hawkins, 706 F.3d at
824. This ebb and flow of decisional law seldom implicates the
fundamental canons of justice. See Teague, 489 U.S. at 313(noting that, because procedures falling under Teague’s second
exception are “so central to an accurate determination of
innocence or guilt, we believe it unlikely that many such
components of basic due process have yet to emerge”).
Rather than fundamental recastings of the foundations of
justice, most changes in law represent close and contestable
questions on which capable jurists can reasonably disagree.
Simmons is a case in point. The Simmons panel, which
incidentally included a former Supreme Court Justice, held that
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the basis for
the en banc majority’s decision, did not “compel[] a different
result” from the Harp regime for analyzing predicate state-court
convictions. United States v. Simmons, 635 F.3d 140, 142 (4th
Cir. 2011), rev’d en banc, 649 F.3d 237 (4th Cir. 2011). The en
banc decision featured opposing views, ably and earnestly
advanced. Compare Simmons, 649 F.3d at 239 (Motz, J.), with id.48
at 250 (Duncan, J., dissenting), and id. (Agee, J., dissenting).
To say now that those on the losing side of the debate were
party to some “miscarriage of justice” requiring collateral
relief, Hill, 368 U.S. at 428, disserves those whom I know my
friends in the majority hold in the highest esteem.
To further say that a criminal defendant lawfully sentenced
prior to Simmons was the victim of some manifest injustice is to
adopt a naively Whig history of law as an unbroken march toward
progress and enlightenment, when in truth it is more often a
matter of fits and starts, of limitless gray areas, all bereft
of the guarantee that later attempts to reconcile public safety
with human liberty will necessarily be better than earlier ones.
The majority’s approach to retroactivity also ignores the
analogous reality that plea bargains are contracts under which,
in exchange for avoiding the uncertainties of trial, the
defendant “assumes the risk of future changes in circumstances
in light of which [his] bargain may prove to have been a bad
one.” United States v. Bownes, 405 F.3d 634, 636 (7th Cir.
2005). This assumed risk includes the forfeiture of later
advantageous legal developments. To say that a later change in
law should automatically make a plea agreement or, as here, a
lawful prior proceeding invalid is to render law provisional and
judgment advisory, good only until the inevitable next round.
49
Once we recognize that a favorable change in law does not
automatically render prior lawfully imposed sentences unjust, it
becomes clear why collateral review is a poor forum for
correcting sentencing errors. Unlike with ineffective-
assistance-of-counsel claims, sentencing issues can usually,
even if not always, be effectively fixed on direct appeal. The
majority’s invocation of the “rigor” with which appellate courts
review sentences on direct appeal only supports this point.
Maj. Op. at 27; see also id. at 23. It does nothing to
undermine a “basic distinction between direct review and
collateral review”: that “an error that may justify reversal on
direct appeal will not necessarily support a collateral attack
on a final judgment.” Addonizio, 442 U.S. at 184.
C.
In addition to being conceptually unsound, the majority’s
holding that Whiteside’s claim is cognizable under § 2255 leads
it to misread Supreme Court precedent and run roughshod over our
own.
The Supreme Court cases upon which the majority and
Whiteside rely are in another room. In Peugh v. United States,
the Court held that the Ex Post Facto Clause forbids a district
court from using Sentencing Guidelines promulgated after the
original offense to sentence a defendant if the later Guidelines
increase the recommended sentencing range. 133 S. Ct. 2072,
50
2084 (2013). But Peugh is readily distinguishable. First, it
deals with constitutional error. Second, it deals with direct
appeal. The standard for ex post facto challenges articulated
in a case like Peugh –- that the change in law create merely “a
‘significant risk’ of a higher sentence,” Peugh, 133 S. Ct. at
2088 -- is substantially less demanding than the requirement of
a fundamental defect leading to a miscarriage of justice for
collateral attack on non-constitutional errors. And third,
there is no indication that the Supreme Court intended Peugh’s
holding to apply retroactively to already-final sentences such
as Whiteside’s. See Hawkins, 724 F.3d at 916-18.
Johnson v. United States, 544 U.S. 295 (2005), similarly
fails to support Whiteside’s position. Johnson dealt with
§ 2255’s one-year statute of limitations. There, the Supreme
Court stated that it shared the petitioner’s “preliminary
assumption that if he filed his § 2255 motion in time, he is
entitled to federal resentencing now that the State has vacated
one of the judgments supporting his enhanced sentence.” Id. at
302-03. This assumption was irrelevant to the disposition of
the case, however, since the Court held that the § 2255 petition
at issue was time-barred. Id. at 311. Furthermore, the
assumption was made in the context of the vacatur of predicate
state convictions; here, there is no question that Whiteside’s
51
state convictions are still valid and that the district court
could, would, and should consider them on resentencing.
Finally Davis v. United States, 417 U.S. 333 (1974), is
inapposite to this case. In Davis, the Supreme Court held that
§ 2255 could be used to challenge a conviction when an
intervening change in law rendered the act upon which the
conviction was based one “that the law does not make criminal.”
417 U.S. at 346. Davis held: “There can be no room for doubt
that such a circumstance ‘inherently results in a complete
miscarriage of justice’ and ‘present[s] exceptional
circumstances’ that justify collateral relief under § 2255.”
Id. at 346-47 (alteration in original). But nothing in Davis
suggests that its holding should extend to cases where, as here,
the intervening change in law did not undermine the underlying
convictions. The difference is one of night and day. To say as
the majority does that “this case does not present exactly the
kind of error” at issue in Davis is an understatement, to put it
mildly. Maj. Op. at 24.
If the majority opinion distorts Supreme Court precedent,
it tramples our own. Whiteside states that “[d]eciding this
case requires the Court to break new ground in this Circuit,” a
euphemistic way of inviting us to disregard our prior precedent.
Appellant’s Reply Br. at 27.
52
Sadly, the invitation has been accepted. We held in United
States v. Pregent, “[b]arring extraordinary circumstances
. . . , an error in the application of the Sentencing Guidelines
cannot be raised in a § 2255 proceeding.” 190 F.3d at 283-84;
see also United States v. Goines, 357 F.3d 469, 477 (4th Cir.
2004) (“[Guidelines] claims ordinarily are not cognizable in
§ 2255 proceedings.”); Mikalajunas, 186 F.3d at 496 (“[A]
misapplication of the [Sentencing Guidelines] typically does not
constitute a miscarriage of justice.”). These cases all came
from the era in which the Sentencing Guidelines were virtually
mandatory. Their teachings are all the more compelling in the
present advisory Guidelines period. For if Guidelines
calculations were not cognizable on collateral review in their
all-but-mandatory form prior to Booker, they certainly cannot be
cognizable in their new advisory status.
Moreover, the holdings in the above cases stem from the
fact that § 2255 is designed for “cases in which ‘the sentence
was in excess of the maximum authorized by law.’” Pregent, 190
F.3d at 284 (quoting 28 U.S.C. § 2255(a)). Here, however,
Whiteside’s career-offender designation did not increase his
statutory maximum. As Judge King recognized in United States v.
Powell, because career-offender designations do not lead to
“sentences exceeding the applicable statutory maximum,” they are
thus not challengeable under § 2255. 691 F.3d 554, 563 n.2 (4th
53
Cir. 2012) (King, J., dissenting in part and concurring in the
judgment in part).
Similarly, in United States v. Pettiford, 612 F.3d 270 (4th
Cir. 2010), we ruled that there was no miscarriage of justice,
and thus no remedy available under § 2255, for a prisoner
challenging his career-offender sentence when two of the
underlying predicate convictions had been vacated but the
career-offender designation was still supported by the remaining
convictions. In that case, as here, the district court could
have imposed an identical sentence following vacatur. Thus,
there was “no evidence that [the petitioner’s] sentencing was
constitutionally defective or flawed in a fundamental way.”
Pettiford, 612 F.3d at 278.
II.
In addition to being non-cognizable, Whiteside’s claim for
relief is time-barred. 28 U.S.C. § 2255(f) provides for a one-
year statute of limitations that is triggered by one of four
conditions, whichever occurs latest:
(1) the date on 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
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
54
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
A.
Whiteside contends that his claim fits under (f)(4), and
that United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), qualified as a new “fact” for purposes of that provision.
Whiteside’s suit is timely under this theory, since he filed
less than a year after Simmons was handed down. Although the
majority does not adopt Whiteside’s statutory argument, an
explanation of the statutory scheme is still necessary to
illustrate the many ways in which the majority’s equitable
holding negates it.
Whiteside grounds his argument on the Supreme Court’s
decision in Johnson v. United States, 544 U.S. 295 (2005). In
Johnson, the defendant’s sentence in the original proceeding was
enhanced on the basis of a state conviction which was later
vacated. Following vacatur, Johnson sought federal post-
conviction relief, contending that his enhanced sentence was no
longer valid. 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
55
of (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 (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 (6th Cir. 2013); Sanchez v. United States, 318 F. App’x 801,
804 & n.6 (11th Cir. 2009) (unpublished per curiam); Lo v.
Endicott, 506 F.3d 572, 575 (7th Cir. 2007); E.J.R.E. v. United
States, 453 F.3d 1094, 1098 (8th Cir. 2006); Shannon v. Newland,
410 F.3d 1083, 1088-89 (9th Cir. 2005); see also Minter v. Beck,
230 F.3d 663, 666 (4th Cir. 2000) (rejecting, in a similar
context, defendant’s attempt to invoke a change in law outside
(f)(3)).
Contrary to the vacatur at issue in Johnson, Simmons did
not directly alter Whiteside’s legal status as a prior state
offender. See Lo, 506 F.3d at 575. A conviction is a fact for
sentencing purposes, but a relevant legal rule is not. Simmons,
“unlike a predicate conviction, is a ruling exclusively within
the domain of the courts and is incapable of being proved or
56
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 merely
announced a generally applicable legal rule. But 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 update the
legal significance of certain facts without modifying them do
not 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
57
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
court on any issue could constitute a ‘factual predicate’ would
swallow up the specifically delineated limitations in” (f)(3).
Id. at 576. These considerations indicate that “subsequent
interpretations of the law can be the basis of delay in filing a
§ 2255 motion only in accordance with” (f)(3) -- not (f)(4).
Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th Cir. 2011)
(en banc) (internal quotation marks omitted). Notably,
Whiteside does not even attempt to argue that his claim
satisfies the requirements specified in (f)(3).
58
B.
Recognizing the speciousness of his statutory argument,
Whiteside asserts in the alternative -- in an argument embraced
by the majority -- that the statute of limitations should be
equitably tolled. Equitable tolling of petitions for collateral
review is available only when a defendant demonstrates “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). Under this court’s precedent,
equitable tolling is appropriate in those “rare instances where
-- due to circumstances external to the party’s own conduct --
it would be unconscionable to enforce the limitation period
against the party and gross injustice would result.” Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (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
59
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.
This court’s decision in Minter v. Beck confirms this line
of reasoning. In that case, as here, the defendant’s claim
originally seemed foreclosed by extant precedent. After the
issuance of a favorable decision, however, he sought to
collaterally attack his sentence, invoking a provision
equivalent to (f)(2). Minter 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, the court held that
equitable tolling was inappropriate. Minter, 230 F.3d at 666-
67. The court reasoned that unfavorable precedent may have
rendered a timely claim unsuccessful, but did not actually bar
Minter from making the attempt. As the court observed,
“futility . . . is not a valid justification for filing an
untimely” petition. Id. at 666. Nothing in Holland undermines
this central holding. The majority’s Orwellian declaration that
Minter establishes a “bright-line rule” that must be applied on
a “case-by-case basis” is contradictory at best, and scornful of
precedent at worst. Maj. Op. at 12.
60
Tellingly, Whiteside makes no allegation that he was unable
to file in a timely fashion -- only that doing so would probably
have been unsuccessful in light of extant case law. Indeed, any
such allegation would be frivolous given the many defendants who
filed suits prior to Simmons asserting the exact same
substantive claim that Whiteside now raises, including of course
Simmons himself. See, e.g., United States v. Brandon, 376 F.
App’x 343 (4th Cir. 2010) (unpublished per curiam); United
States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (unpublished
per curiam); United States v. Simmons, 340 F. App’x 141 (4th
Cir. 2009) (unpublished per curiam), vacated, 130 S. Ct. 3455(2010). These claims were not entirely meritless even under
then-existing precedent: the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth
Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th
Cir. 2008), both strongly foreshadowed Simmons. Equitable
tolling should not be applied where, as here, the only
impediment to timely filing was the discouragement felt by the
petitioner on calculating his odds of success.
Furthermore, Whiteside has failed to demonstrate that
“gross injustice” would result should this court deny his
request for equitable tolling and find his claim time-barred.
See Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008)
(internal quotation marks omitted). As explained above and
61
contrary to the majority’s assertion, see Maj. Op. at 21,
Whiteside’s petition for collateral relief fails on the merits
for the simple reason that the claimed sentencing error involved
nothing more than a miscalculation of the advisory Guidelines
range. Despite Whiteside’s contentions to the contrary, this
type of error does not represent “a fundamental defect which
inherently results in a complete miscarriage of justice.” Hill
v. United States, 368 U.S. 424, 428 (1962). For similar
reasons, a dismissal of Whiteside’s claims on procedural grounds
also falls short of constituting a “gross injustice.”
Finally, as several circuits have noted, it is quite
improper to use the doctrine of equitable tolling to circumvent
the express limitations contained in § 2255. See, e.g., Lo, 506
F.3d at 576. Equitable tolling is instead intended to address
obstacles to filing not otherwise governed by the statutory
provisions. Owens, 235 F.3d at 360. In this case, Whiteside’s
statutory and equitable arguments both stem from the change in
law precipitated by Simmons. Changes in law are governed by
(f)(3), which lays out a set of requirements that Whiteside
fails to satisfy. To permit Whiteside to “succeed on this
recharacterized argument” would thus “usurp the congressionally
mandated limits on habeas petitions.” Lo, 506 F.3d at 576.
In this case, Simmons came down roughly a year after
Whiteside’s conviction became final. That may seem a short time
62
to the majority, but its equitable reasoning applies equally to
a long history of three, five, or even ten years, or whenever a
change in circuit decisional law or Guidelines interpretation
may appear. This sort of reasoning makes a mockery of
Congress’s desire to have post-conviction petitions filed when
the evidence is not stale or missing altogether.
III.
It has often been noted that one of the casualties of
expanded collateral review is the finality of criminal
convictions. The majority pays the kind of lip service to this
value that is typical when a principle is about to be
disregarded. See Maj. Op. at 29. In the majority’s eyes,
finality is an empty and hollow concept with no meaning
comparable to a defendant’s rights to relitigation. But the
evisceration of the finality principles imposes costs, and many
of these costs are born by the judicial system. See McCleskey
v. Zant, 499 U.S. 467, 491 (1991); United States v. Addonizio,
442 U.S. 178, 184 n.11 (1979); Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 148-49 (1970).
As the Seventh Circuit emphasized in Hawkins, collateral
review of years-old proceedings ties up prosecutorial resources
that could otherwise be used to promptly resolve new criminal
cases. See Hawkins v. United States, 706 F.3d 820, 824 (7th
63
Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915 (7th
Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24, 2014)
(No. 13-538). Furthermore, post-conviction petitioners occupy
the time of defense counsel who might otherwise turn their
valuable but finite energies to a defense when it matters most:
at trial. And the ultimate victims of this burdened system are
other litigants, civil and criminal, who find the courthouse
door clogged by the ever-rising number of post-conviction
petitions.
By undermining finality, expansive collateral review also
harms our criminal-justice system more broadly. Because endless
collateral review keeps convictions and sentences in legal limbo
and makes it more doubtful that announced punishment will
actually be imposed, it eviscerates the deterrent effect of
criminal law. See Teague v. Lane, 489 U.S. 288, 309 (1989)
(plurality opinion). For similar reasons, it reduces public
confidence in our criminal-justice system, see Addonizio, 442
U.S. at 184 n.11. And it threatens to diminish the quality of
judging in the first instance, since, as Professor Bator
recognized long ago, there is “nothing more subversive of a
judge’s sense of responsibility, of the inner subjective
conscientiousness which is so essential a part of the difficult
and subtle art of judging well, than an indiscriminate
acceptance of the notion that all the shots will always be
64
called by someone else.” Paul M. Bator, Finality in Criminal
Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.
Rev. 441, 451 (1963).
Ultimately, repetitious litigation under the guise of
collateral error correction “disparages the entire criminal
justice system,” McCleksey, 499 U.S. at 492, by undermining a
key justification for the existence of final judgments: to give
all interested parties –- defendants, victims, and society alike
-- closure and a chance to move on and look forward rather than
back. As Justice Harlan put it:
At some point, the criminal process, if it is to
function at all, must turn its attention from whether
a man ought properly to be incarcerated to how he is
to be treated once convicted. If law, criminal or
otherwise, is worth having and enforcing, it must at
some time provide a definitive answer to the question
litigants present or else it never provides an answer
at all. Surely it is an unpleasant task to strip a
man of his freedom and subject him to institutional
restraints. But this does not mean that in so doing,
we should always be halting or tentative. No one, not
criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment
providing a man shall tentatively go to jail today,
but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation on
issues already resolved.
Mackey v. United States, 401 U.S. 667, 690-91 (1971) (Harlan,
J., concurring in the judgments in part and dissenting in part).
At the time Justice Jackson lamented the flood of post-
conviction petitions in Brown v. Allen, the federal courts heard
approximately 500 state-prisoner habeas petitions a year. 344
65
U.S. 443, 536 n.8 (1953) (Jackson, J., concurring in the
result). In recent years, they have heard close to 20,000
annually, of which fewer than one-half of one percent have
succeeded. Joseph L. Hoffmann & Nancy J. King, Justice, Too
Much and Too Expensive, N.Y. Times, Apr. 16, 2011, at WK8.
Ultimately, “no one in a position to observe the functioning of
our byzantine federal-habeas system can believe it an efficient
device for separating the truly deserving from the multitude of
prisoners pressing false claims.” McQuiggin v. Perkins, 133 S.
Ct. 1924, 1942-43 (2013) (Scalia, J., dissenting).
Reasonable people may disagree over the proper tradeoff
between finality and error correction, but it is not up to
judges to supplant Congress’s judgment on this point with their
own. Above some constitutional crossbar, which most would agree
is easily cleared by our current system, Congress alone
possesses the power and responsibility to define the contours of
federal collateral review. And by Congress’s own terms, the
proper focus of such review is on whether, in the direct
proceedings, there was a “violation of the Constitution or laws
of the United States.” 28 U.S.C. § 2255(a). Because
Whiteside’s sentence was properly imposed according to the
undisputed law in force at the time, there was no such
violation.
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When the majority expands the scope of § 2255 in excess of
what Congress intended, or excuses Whiteside’s untimely petition
in clear violation of statutory requirements, it augments its
own power at Congress’s expense. As is often the case in
federal post-conviction review, dissatisfaction with the
underlying provisions of the criminal law fuels expansion of
what should be a selectively utilized device for collateral
attack. Whatever problems may exist in our substantive criminal
and sentencing regimes, reform is properly committed to Congress
via its constitutional authority, not to judges through the
backdoor of collateral review.
Seldom has a court broken more china en route to a result.
Certificates of appealability, doctrines of retroactivity,
statutes of limitation, pertinent precedents are all
disregarded. Law is relegated to the margins. All that need be
staked is one’s own claim to sole possession of the “truth” and
“right.” Instead of respecting the limitations that Congress,
the Supreme Court, and our precedent have imposed on § 2255, the
majority conflates claims that are cognizable only on direct
appeal with the sort of fundamental defects that represent the
proper focus of § 2255. The Supreme Court has warned against an
approach under which
the writ would become a delayed motion for a new
trial, renewed from time to time as the legal climate
changed. . . . Wise judicial administration of the
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federal courts counsels against such [a] course, at
least where the error does not trench on any
constitutional rights of defendants nor involve the
jurisdiction of the trial court.
Sunal v. Large, 332 U.S. 174, 182 (1947).
The majority’s approach devalues collateral review by
transforming its nature. The Great Writ, upon which § 2255 was
modeled, has earned its name not only because of its power, but
because, when used properly, it is used sparingly and to correct
certain fundamental infractions. Today, the majority renders
post-conviction review unrecognizable as compared to its
intended role at the Founding: to challenge sentences in
violation of a court’s “jurisdiction or detention by the
Executive without proper legal process.” McCleskey, 499 U.S. at
478 (internal citation omitted); see also Swain v. Pressley, 430
U.S. 372, 385-86 (1977) (Burger, C.J., concurring in part and
concurring in the judgment).
The Great Writ stands for the fundamental proposition that
government too is subject to the given law. Here the government
observed the law; it is, sadly, a court that accords no meaning
to that fact. How is it that requiring someone to serve a
sentence lawfully imposed and constitutionally rendered becomes
a “plain injustice” and a “fundamental unfairness”? Maj. Op. at
29. This path vindicates no fundamental liberty. It only
transforms collateral review into a double of direct review, a
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redundant mechanism for routine error correction, deployed to
unsettle sentences that were imposed years earlier under
governing law, in accordance with unexceptionable procedure, and
by a sovereign acting in accordance with its sovereign duty to
protect citizens from those who repeatedly violate its criminal
laws.
For the aforementioned reasons, and because I view this
decision as wholly wrong and deeply damaging to our criminal-
justice system, I respectfully dissent.
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