Resentencing Request Comes Too Late

Although a convicted drug offender says he should be resentenced without a career offender enhancement, in light of U.S. v. Simmons, the en banc 4^th Circuit says his motion for resentencing under 28 U.S.C. § 2255 is untimely, and affirms the district court’s dismissal of the motion.

Petitioner Deangelo Whiteside pleaded guilty to possession with intent to distribute at least 50 grams of cocaine base, pursuant to 21 U.S.C. § 841(a)(1). The district court sentenced him to 210 months, entering judgment on July 20, 2010. Whiteside did not pursue a direct appeal. His conviction became final on Aug. 3, 2010, when his time for appeal expired. On May 18, 2012, Whiteside filed his § 2255 motion to vacate his sentence in light of U.S. v. Simmons, 649 F.3d 237 (4^th Cir. 2011). He argued that after Simmons, his prior drug offenses would no longer qualify as predicate felony convictions for purposes of sentencing enhancements, including the career offender enhancement under USSG § 4B1.1.

The threshold issue before this court concerns the timeliness of the § 2255 petition. The district court denied the motion as untimely and declined to apply equitable tolling. A divided panel of this court vacated the sentence and remanded for resentencing, holding that the statutory limitations period should be equitably tolled and petitioner’s claims were otherwise cognizable on collateral review. A majority of the active judges in the circuit voted to rehear the case en banc. We now hold that the petition is untimely and affirm the district court’s dismissal of it.

Whiteside contends his claim falls under § 2255(f)(4), and that Simmons qualified as a new “fact” for purposes of that provision. Whiteside’s suit would be timely under this theory, since he filed his petition less than a year after Simmons was handed down.

Simmonsrepresented a change of law, not fact. The circuits to have considered this type of issue have uniformly reached the same conclusion. Simmons did not directly alter Whiteside’s legal status as a prior state offender. Whiteside’s (f)(4) argument fails for the additional reason that it would effectively nullify (f)(3), which provides for tolling in instances where the defendant’s claim is founded on a right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

We also reject Whiteside’s contention that the statute of limitations should be equitably tolled, as he was prevented from timely filing by the unfavorable precedent that would have governed his claim had he sued prior to Simmons.  Equitable tolling may not be applied where, as here, the only impediment to timely filing was the discouragement felt by petitioner when calculating his odds of success. If we accepted Whiteside’s view, we would be on the way to holding that a myriad of substantive changes in law past the point of finality would suffice to equitably toll the statute of limitations in § 2255(f) whenever it might be conjectured that past and future outcomes would be different.

The judgment of the district court must be affirmed.

Dissent

Gregory, J., joined by Davis, S.J.: The majority today has chosen not to exercise its powers in equity – which the Supreme Court recently affirmed – and to allow a gross injustice to be committed against petitioner. Nobody disputes that he has been erroneously designated a career offender. Still, the majority insists he cannot challenge this mistake. As a result of our decision, Whiteside faces at least eight more years in prison. It is simply unjust to deny someone the opportunity to receive a properly calculated sentence. I must dissent.

Wynn, J.: This is a case that demands a yielding of mechanical rules in favor of the relief necessary to correct a mistake of our own making. Undisputedly, in light of Simmons, Whiteside was no career criminal, and his enhanced “career criminal” sentence was premised on this court’s erroneous interpretation of the law. But because more than a year had passed since his sentencing, his petition was deemed tardy. Today this court refuses to set aside that formalistic time bar in the name of equity. The other interests at stake here eclipse our interest in finality. Respectfully, I dissent.

Whiteside v. U.S. (Wilkinson) No. 13-7152, Dec. 19, 2014; USDC at Asheville, N.C. (Reidinger) Ann L. Hester for appellant; Amy E. Ray, AUSA, for appellee. VLW 014-2-211, 31 pp.