Professional Documents
Culture Documents
No. 13-7152
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:
Decided:
April 8, 2014
the
reasons
stated
below,
we
grant
certificate
of
I.
The facts relevant to this appeal are brief and largely
undisputed.
then
The
entered
agreement
into
plea
acknowledged
agreement
the
with
possibility
the
that
4B1.1.
It
also
contained
several
waivers
of
Whitesides
The
grams
of
powder
cocaine
and
468.3
grams
of
crack
The probation
offender
enhancement
under
4B1.1. 2
The
enhancement
acceptance
of
responsibility,
Whitesides
Sentencing
governments
851
Information,
the
prior
In light of
felony
drug
to
Whitesides
sentencing
hearing,
the
government
month
Guidelines
range.
The
district
court
granted
the
In
conviction
is
crime
punishable
by
term
of
imprisonment
exceeding
one
year
only
when
the
defendants
faced
Guidelines
range
of
140
to
175
months
and
without
the
enhancement. 3
The
district
court
his sentence in his plea agreement, and that he was not eligible
for
post-conviction
relief
because
he
received
sentence
II.
A.
We must first address whether Whitesides motion to vacate
is procedurally barred.
whether
Whiteside
in
his
agreement
United
States
v.
Copeland,
waived
his
right
to
F.3d
522,
528
(4th
Cir.
2013).
The relevant portions of Whitesides plea agreement are as
follows:
20.
21.
his
grounds
right
except
to
that
prosecutorial
collaterally
of
attack
ineffective
misconduct.
We
his
sentence
assistance
disagree,
of
on
counsel
finding
that
all
or
the
short,
the
paragraphs
quoted
above
contradict
one
It goes
with
respect
to
the
career
offender
enhancement.
assistance
or
prosecutorial
misconduct
grounds.
result
reference
at
statement
in
the
which
end
paragraph
would
of
21
render
paragraph
limiting
20
the
career
superfluous,
Whitesides
offender
or
rights
the
to
Either
which
rights
unclear,
it
Whiteside
must
be
waived.
When
construed
against
plea
the
agreement
government.
is
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
collateral
proceeding.
B.
We next consider whether Whitesides motion to vacate was
timely.
to
vacate.
28
U.S.C.
2255(f(1).
Whitesides
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,
equitably
the
statute
tolled
in
of
limitations
certain
in
2255(f)(1)
circumstances.
may
be
Specifically,
circumstance
timely filing.
stood
in
his
way
and
prevented
Relief
limitation
period
against
the
party
and
gross
injustice
would result.
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
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.
No.
1:09-cv-816,
2010
WL
2347076
(M.D.N.C.
June
3,
2010).
warrants
equitable
considerations.
The
obstacle
was
offender
enhancement
that
9
prevented
him
from
seeking
relief.
Once
opportunity
for
timely manner.
on
his
rights
instead,
once
this
was
meaningful
corrected
review,
and
he
Whiteside
filed
his
had
motion
an
in
later
Whitesides
seeks
right
relief
to
from
review
his
obtained
indolence;
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.
one
day
change.
Further,
if
Whiteside
had
filed
his
See
10
666
(4th
Cir.
2000).
However,
our
decision
in
Minter
In
Holland,
the
Supreme
Court
reviewed
an
Eleventh
filing
deadline
may
never
serve
as
basis
for
equitable
timeliness
principles.
the AEDPAs
inflexible
run.
(2010)).
was
Id. at 648.
statutes
rule
of
requiring
always
determined
under
equitable
do[]
not
whenever
set
its
forth
an
clock
has
Court
further
explained
11
that,
while
courts
of
requires
rules.
flexibility
and
the
avoidance
of
mechanical
States,
Holland
petition
and
689
F.3d
applying
within
three
621,
626-28
(6th
Cir.
2012)
equitable
tolling
where
months
Supreme
Courts
of
inmate
(citing
filed
decision
in
futility
may
not
constitute
an
extraordinary
circumstance,
amounted
fundamental
miscarriage
of
justice.
the
Supreme
Court
explained
in
Holland,
the
AEDPAs
time
Whitesides
is
an
extraordinary
circumstance
that
warrants
some
Id. at 650
248
(1944)). 6
Accordingly,
we
equitably
toll
the
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
defect
which
inherently
results
in
complete
14
miscarriage of justice.
The Supreme
United States, 368 U.S. 424, 429 (1962), the Court reviewed a
sentencing judges failure to inform a defendant that he had the
right
to
speak
characterized
formal
at
this
his
mistake
requirements
of
sentencing
hearing.
as
failure
rule,
mere
and
held
The
to
that
Court
follow
it
did
the
not
the
United
right
to
States
v.
appeal
where
Timmreck,
defendant
441
U.S.
780
knew
of
(1979)
the
right);
(failure
to
In contrast,
rendered
correctable
on
the
defendants
collateral
conduct
review
no
because
longer
criminal
[t]here
can
be
is
no
of
justice
. . . .
417
U.S.
at
346
(internal
490, 496 (4th Cir. 1999) (collecting cases); see also United
15
States
v.
Pregent,
190
F.3d
279,
283-84
(4th
Cir.
1999).
an
ordinary
Guidelines
error
as
opposed
to
In
criminal
Pregent,
history
we
had
considered
been
whether
wrongly
calculated
186 F.3d at
defendant
whose
resulting
in
sentence four months too long was entitled to seek relief from
the supervised release portion of his sentence.
& n.4.
collateral
review,
untimely.
issue
presented
enhancement
is
in
so
we
this
dismissed
case:
significant
the
defendants
whether
that
its
the
claim
career
improper
as
offender
application
Three
courts
of
appeals
have,
however,
confronted
States,
644
Eighth
Circuit
considered
Courts
decision
F.3d
in
700
(8th
the
Begay,
Cir.
question
which
2011)
In Sun Bear v.
(en
banc),
following
limited
this
the
the
the
Supreme
category
of
Sun
Seventh
conclusion.
Circuit
initially
reached
different
the
his
the
the
the
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
offenders.
court
for
such
repetitive
and
violent
deemed
miscarriage
reserved
of
the
resulting
justice
career
even
though
offender
it
Id. at 629.
fell
The
sentence
beneath
a
the
States
Guidelines
v.
remained
Booker,
543
mandatory.
U.S.
220
Shortly
(2005),
after
when
the
the
Narvaez
States, 706 F.3d 820, 824 (7th Cir. 2013) supplemented on denial
of rehg, 724 F.3d 915 (7th Cir. 2013), cert. denied, 134 S. Ct.
18
erroneous
career
offender
enhancement
amounts
to
are
sentencing.
the
heart
of
Id. at 1087.
the
substantive
law
of
federal
that
increases
defendants
applicable
Guidelines
Id. at 2083
remain
process.
cognizant
of
them
throughout
the
sentencing
n.6 (2007)).
Id. at
Id. at 2084.
additional
statistical
enhancement,
that,
because
data
concerning
the
Spencer
panel
of
Booker,
career
held,
the
career
[w]e
cannot
offender
status
no
Instead,
20
advisory,
. . .
can
sentencing analysis.
amount
to
fundamental
defect
in
the
Id. at 1088-89. 10
erroneous
amounts
to
application
a
of
fundamental
the
career
miscarriage
offender
of
enhancement
justice
that
is
The
category
punishment.
of
offender
subject
to
particularly
severe
For
example,
in
2012,
the
mean
sentence
for
the
median
was
60
months.
For
career
offenders,
those
For
drug
trafficking
offenses,
criminal
history
10
21
case
is
representative
of
the
enhancements
but
that
is
exactly
the
point:
the
court
departed
in
range,
fashioning
although
the
ultimate
advisory,
retained
dropped
in
the
wrong
sentence.
place.
its
The
Guidelines
anchoring
effect
Supreme
Court
has
(quoting Freeman v. United States, 564 U.S. ___, ___, 131 S. Ct.
2685, 2692 (2011) (plurality opinion)) (emphasis in original).
11
22
range,
it
different sentence.
same
twenty
almost
would
have
imposed
percent
assistance,
certainly
Whiteside
downward
would
departure
have
based
received
on
substantial
sentence
of
112
Unlike most of
Sentencing
Commission,
the
career
offender
[t]he
Commission
shall
assure
that
enhancement
A statute provides
the
[G]uidelines
term
enhancement.
Commission
authorized
28
U.S.C.
fashioned
for
those
994(h).
strict
who
Heeding
penalties
for
qualify
this
career
for
charge,
the
the
offenders:
to
the
increase
Both factors
in
Whitesides
Guidelines range.
Clearly then, the impact of the career offender enhancement
is far from ordinary.
while
possibly
having
an
impact
on
the
defendants
justice.
defendant
possible
as
In
a
contrast,
hopeless
punishment,
and
an
enhancement
recidivist
that
has
worthy
the
that
of
effect
the
of
casts
the
strictest
robbing
The dissent faults us for failing to provide a nonarbitrary 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
417 U.S. at
346.
that
such
circumstance
inherently
miscarriage of justice . . . .
and citation omitted).
results
in
complete
valid.
Regardless,
though,
Whiteside
is
almost
13
Nor does the fact that Whiteside was sentenced beneath the
applicable statutory maximum mitigate the mistake.
Contrary to
lawful,
conclusion
is
appellate
review.
for
contrary
several
to
our
While
reasons.
First,
principles
of
well-established
such
sentencing
review
is
highly
Gall
meaningful
decision
had
intended
review,
. . .
to
there
to
dispense
would
direct
have
district
with
any
been
no
courts
the
deviation
need
to
for
of
the
correctly
Id. at 265-66
Guidelines,
they
must
and
that
the
ensure
semblance
consider
the
justification
extent
is
of
the
sufficiently
26
Gall, 552
courts
that
are
unreasonable
explanations.
See,
in
e.g.,
light
United
of
States
the
v.
Engle, 592 F.3d 495, 505 (4th Cir. 2010); Abu Ali, 528 F.3d at
268-69.
Of
appeal.
role
in
course,
these
standards
are
utilized
only
on
direct
that
each
and
every
defendant
sentenced
in
animating
different here.
principles
of
fundamental
justice
are
no
opportunity for such review did not arise until after the period
in which to file a direct appeal had lapsed.
challenged
his
career
offender
status
on
Had Whiteside
direct
appeal,
his
See United States v. Harp, 406 F.3d 242 (4th Cir. 2005);
be
punished
and
we
mean
literally
He should
punished,
as
in
additional time spent in federal prison, time which the law does
not countenance for this fact.
of
one
of
our
decisions
contributes
to
the
conclusion
that
from
utilizing
point.
See
an
incorrect
Peugh,
133
S.
Guidelines
Ct.
at
range
2086;
as
see
also
Spencer, 727 F.3d at 1087 (The Seventh Circuit [in Hawkins] may
think
that
mistakenly
categorizing
defendant
as
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
sentence
given
defendant
outside
the
Guidelines
direct
appeal,
indicating
that
it
the
found
error
mistake
of
also
constitutional
would
have
been
advisory
system,
Peugh
also
drew
on
the
principles
of
Id.
We find
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
consideration.
It
approaching
sanctity
the
encourages
defendants
to
accept
the
misuse
of
judicial
resources.
Perhaps
most
outweigh
the
plain
injustice
that
would
result
from
sentenced
should
according
apply.
Were
we
to
to
the
factors
conclude
that
everyone
otherwise,
we
agrees
would
be
or
justice.
Erroneous
application
of
the
career
14
Because
we
find
that
Whiteside
suffered
fundamental
the
error
process.
We
question
to
violated
have,
the
his
constitutional
however,
extent
considered
necessary
to
rights
the
grant
to
constitutional
certificate
2255(c)
appealability
showing
of
added).
only
the
A
(permitting
where
denial
constitutional
petitioner
of
certificate
question
issuance
has
the
same
reasons
constitutional
of
appealability
that
is
discussed
may
of
substantial
right)
debatable.
above
of
See 28
certificate
made
of
due
(emphasis
issue
on
Miller-El
a
v.
regard
to
the
that
erroneous
application
of
the
career
offender
31
appealability. 15
IV.
For
tolling
the
reasons
applies
to
stated
above,
Whitesides
we
claim.
hold
We
that
also
equitable
hold
that
Whitesides
and
remand
the
case
for
resentencing.
VACATED AND REMANDED FOR RESENTENCING
15
am
pleased
compelling
to
opinion,
join
which
Judge
fully
Gregorys
responds
extraordinarily
to
the
dissents
simply
for
the
dissent
to
say
that
there
is
no
724
F.3d
915,
919-25
(7th
Cir.
2013)
(Rovner,
J.,
F.3d
680
(7th
Cir.
2013)
(Rovner,
J.,
joined
by
Wood,
lens
of
perfectly
fine
which
to
is
our
for
say
good
the
the
friends
United
dissenting
States
Executive
opinion,
Department
Branch,
to
it
is
of
Justice,
bypass
supposed
laws
interest
in
finality
must
give
way
to
competing
miscarriage
of
justice
amounts
to
judicial
place
in
our
scheme
of
institutional
checks
and
imperfect
system
of
criminal
justice,
is
to
afford
erroneous
decision-making,
and
not
least
of
all,
34
Whiteside
was
properly
designated
career
years
later,
invalidating
circuit
the
majority
Whitesides
split
over
vacates
sentence,
whether
the
that
sentence.
majority
career-offender
creates
designations
In
a
are
for
post-conviction
review
of
federal
criminal
proceedings.
The
federal
majority
collateral
precedent.
that
opinion
have
convictions.
represents
review
that
is
dramatic
unsupported
expansion
by
law
of
or
safeguarded
disrupts
the
the
basic
orderly
finality
of
administration
criminal
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.
no injustice done here.
No
proceedings.
In
short,
Whiteside
was
sentenced
Absent a
ask
or
expect.
Moreover,
the
defendant
must
raise
the
It is bad
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
For
the
reasons
set
dissent.
36
forth
below,
respectfully
I.
The majority opinion creates a square circuit conflict over
whether
allegedly
erroneous
career-offender
designations
in
constitutional
only
if
it
nor
jurisdictional
constitutes
United States
cognizable
fundamental
defect
under
which
inconsistent
with
the
37
rudimentary
demands
of
fair
procedure.
neither
Whiteside
nor
the
majority
claims
that
the
offender,
Whitesides
claim
is
only
cognizable
if
it
these requirements.
A.
The
heart
of
constitutional error.
collateral
review
is
the
correction
of
2255
proceeding,
requires
the
petitioner
to
make
U.S.C.
2253(c)(2).
Whiteside
has
made
no
substantial
And even if
only
colorable
constitutional
claim
even
plausibly
at
any
point
in
these
proceedings.
While
the
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).
case
that
overturned
the
rule
in
force
at
Indeed, the
the
time
of
sense.
The
doctrinal
hook
for
Whitesides
due
process
the
jury
imposed
mandatory-minimum
40-year
In
sentence
petitioners
Oklahoma
Court
two
of
prior
Criminal
state
convictions.
Appeals
39
declared
Later,
the
the
mandatory-
minimum
law
unconstitutional
petitioners sentence.
the
petitioners
due
but
refused
to
vacate
the
rights
were
violated
when
the
term
was
improperly
limited,
even
though
the
sentence
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
distinction
makes
all
the
difference.
Whiteside
was
on
habeas
except
in
two
narrow
and
infrequent
criminal
sanction,
(1990),
or
see
Saffle
constitutes
v.
Parks,
watershed
494
U.S.
rule[]
484,
of
494
criminal
insisted,
then,
that
retroactivity
doctrine
not
not
dictated
by
precedent
existing
at
the
time
the
U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301) (emphasis
and internal quotation marks omitted).
A novel application of
Stringer v. Black,
Hicks
does
not
apply
at
all
to
Whitesides
Hicks
a
collateral
new
would
rule
review:
constitutional
right
require
of
to
announce
constitutional
namely
to
us
an
that
amended
41
and
criminal
criminal
sentence
retroactively
procedure
defendant
based
on
has
on
a
later
This
rule
petitioners
and
2255
thus
applied
petition
alleged
retroactively
actual
innocence
where
the
of
rare
case
of
watershed
rule
of
criminal
and
omitted).
dissenting
in
part))
(internal
quotation
marks
Whiteside seeks.
Seeking to avoid Teagues restrictions, the majority tries
to hang its constitutional case on Simmons itself and issue the
42
case
about
interpretation
Constitution.
statutory
of
interpretation
federal
sentencing
-law
--
namely
the
not
the
Teague,
Whiteside
has
no
constitutional
claim
and
no
federal
are
law
determinations
circumstances.
majoritys
are
cognizable
not
on
except
in
the
advisory
most
Guidelines
extraordinary
of
attempt
to
find
Whitesides
claim
cognizable
are
Guidelines
are
merely
advisory,
they
lack
the
force
of
laws
they
are
not
upheld
when
pinch
as
well
as
when
they
It is notable that
for
substantial
assistance,
departure
that
was
The
but
did
not,
strongly
suggesting
that
it
viewed
Whitesides
happen
speculation.
on
resentencing
The
majority
are
suggests
nothing
that
more
the
than
rank
district
court
attempt
to
put
the
hammer
to
the
court,
such
assault,
convictions
lengthy
hit
that
record
independently
of
and
run,
Simmons
is
the
and
resisting
does
nothing
to
impossible
to
career-offender
public
officer
undermine.
minimize,
since,
designation,
--
This
quite
Whitesides
recommend
criminal-history
category
of
V.
Thus,
the
enhancement
Whiteside
could
have
shaved
years
exert
substantial
influence
on
sentencing,
career-
influential
ultimate
sentence,
after
Booker.
however,
is
Mere
influence
insufficient
on
to
the
warrant
532 U.S. 374, 376 (2001) (holding that 2255 cannot generally
be
used
Career
to
challenge
Criminal
(holding
that
Act
predicate
of
2255
convictions
1984);
is
Addonizio,
unavailable
to
under
442
the
U.S.
Armed
at
prisoner
190
seeking
496
(holding
restraint
of
that
victim
erroneous
was
sentencing
ordinary
enhancement
misapplication
for
of
the
majority
never
correction
customarily
reconciled
with
the
explains
reserved
broad
scope
46
how
for
it
the
direct
now
reality
appeal
proposes
of
is
for
error
to
be
2255
review.
Nor
differentiate
can
why
it,
this
since
there
Guidelines
is
that
career-offender
clear
calculation
no
is
line
to
open
to
designations
are
far
from
I cannot fathom.
basis in law for its ruling, and the main reason given is that a
career-offender
designation
results
in
substantially
larger
Id.
It is left
1999).
Instead of a legal
to
do,
outlined
the
contours
of
the
career-offender
defendant
justice.
with
fundamental
breakdown
in
procedure
or
properly,
with
no
procedural
irregularities
errors.
Thus,
to
hold
Whitesides
2255
relief
implies
that
that
every
or
substantive
situation
change
in
law
warrants
creates
are
innocence
or
so
guilt,
central
we
to
an
believe
accurate
it
determination
unlikely
that
many
of
such
on
is
which
a
case
capable
in
jurists
point.
can
The
reasonably
Simmons
disagree.
panel,
which
Cir. 2011), revd en banc, 649 F.3d 237 (4th Cir. 2011).
banc
decision
advanced.
featured
opposing
views,
ably
and
The en
earnestly
to
some
miscarriage
of
justice
requiring
collateral
majoritys
approach
to
retroactivity
also
ignores
the
exchange
for
avoiding
the
uncertainties
of
trial,
the
assumed
risk
includes
the
forfeiture
of
later
49
clear
correcting
why
collateral
sentencing
assistance-of-counsel
review
errors.
claims,
is
Unlike
sentencing
poor
with
issues
forum
for
ineffectivecan
usually,
The
sentences
Op.
at
undermine
27;
on
see
basic
direct
also
appeal
only
id.
23.
at
distinction
supports
It
between
this
does
direct
point.
nothing
review
to
and
Supreme
Court
cases
upon
which
the
majority
and
the Court held that the Ex Post Facto Clause forbids a district
court
from
using
Sentencing
Guidelines
promulgated
after
the
2084 (2013).
First, it
in a case like
attack
on
non-constitutional
errors.
And
third,
to
support
Whitesides
position.
stated
that
it
shared
the
Johnson
dealt
with
petitioners
preliminary
Id. at
the case, however, since the Court held that the 2255 petition
at
issue
was
time-barred.
Id.
at
311.
Furthermore,
the
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.
2255
could
intervening
be
used
change
in
challenge
law
rendered
a
the
conviction
act
upon
when
which
an
the
conviction was based one that the law does not make criminal.
417 U.S. at 346.
that
such
miscarriage
circumstances
circumstance
of
inherently
justice
that
justify
and
results
in
present[s]
collateral
relief
complete
exceptional
under
2255.
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.
52
v.
Pregent,
[b]arring
We held in United
extraordinary
circumstances
see also United States v. Goines, 357 F.3d 469, 477 (4th Cir.
2004)
([Guidelines]
2255
claims
proceedings.);
ordinarily
Mikalajunas,
are
186
not
cognizable
F.3d
at
496
in
([A]
advisory
Guidelines
period.
For
if
Guidelines
at
284
Whitesides
(quoting
career-offender
statutory maximum.
Powell,
28
because
U.S.C.
2255(a)).
designation
did
Here,
not
however,
increase
his
career-offender
designations
do
not
lead
to
thus
no
challenging
underlying
remedy
his
available
under
career-offender
predicate
2255,
sentence
convictions
had
for
when
been
prisoner
two
vacated
of
the
but
the
Thus,
defective
or
flawed
in
fundamental
way.
which
the
judgment
of
conviction
a
of
is
a
does
explanation
illustrate
not
of
the
adopt
the
many
Whitesides
statutory
ways
in
scheme
which
Although the
statutory
argument,
an
is
necessary
to
the
still
majoritys
equitable
grounds
his
argument
on
the
Supreme
Courts
In
Following
vacatur,
Johnson
sought
federal
post-
before
2255
petition
was
filed,
but
the
Court
of (f)(4).
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
Whitesides
claim.
Simmons
580 (6th Cir. 2013); Sanchez v. United States, 318 F. Appx 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
similar
Simmons,
disproved.
E.J.R.E.,
453
F.3d
at
1098.
This
point
is
ask
jury
to
decide
whether
judicial
decision
had
indeed changed [the] law in the relevant way, nor would the
parties introduce evidence on the question.
at 1089.
But a decision
petitioners
claim
does
not
Id.
constitute
the
factual
decision,
it
the
legal
significance
of
(Time
diligence
could
when
discover)
the
the
prisoner
important
knows
facts,
(or
not
through
when
the
right
newly
recognized
by
the
Supreme
Court
and
made
28
as
[the
petitioner]
that
any
decision
To
by
any
at
576.
These
considerations
indicate
that
subsequent
banc)
Whiteside
(internal
does
not
quotation
even
attempt
marks
to
omitted).
argue
58
that
Notably,
his
claim
B.
Recognizing
the
speciousness
of
his
statutory
argument,
quotation
marks
omitted).
Under
this
courts
precedent,
would
be
unconscionable
to
enforce
the
limitation
339
F.3d
Hutchinson,
238,
209
246
F.3d
(4th
325,
Cir.
330
2003)
(4th
(quoting
Cir.
2000))
period
Rouse v.
Harris
v.
(internal
he
sued
prior
to
Simmons.
The
standard
announced
in
Although
Simmons
plainly
made
collateral
attack
on
filing
limitations.
his
petition
within
the
one-year
statute
of
of
collaterally
favorable
attack
his
equivalent to (f)(2).
decision,
by
decision,
sentence,
however,
After the
he
invoking
sought
to
provision
nullifying
the
unfavorable
precedent
that
had
After
rejecting
this
argument,
The
court
reasoned
that
the
court
held
that
unfavorable
precedent
may
have
from
making
the
attempt.
As
the
court
observed,
Id. at 666.
Indeed, any
suits
prior
to
Simmons
asserting
the
exact
same
343
(4th
2010)
(unpublished
per
curiam);
United
then-existing
precedent:
the
Supreme
Courts
decision
in
2008),
tolling
both
should
strongly
not
be
foreshadowed
applied
where,
Simmons.
Equitable
as
the
here,
only
Whiteside
injustice
would
has
result
failed
should
to
this
demonstrate
court
that
deny
his
Green
(internal
v.
Johnson,
quotation
515
marks
F.3d
290,
omitted).
61
As
304
(4th
explained
Cir.
2008)
above
and
contrary
to
the
majoritys
assertion,
see
Maj.
Op.
at
21,
United
States,
368
U.S.
424,
428
(1962).
For
Hill
similar
as
several
circuits
have
noted,
it
is
quite
to
provisions.
filing
not
otherwise
governed
by
the
statutory
(f)(3),
of
fails
which
to
lays
satisfy.
out
To
set
permit
requirements
Whiteside
to
that
succeed
Whiteside
on
this
this
case,
Simmons
came
down
roughly
year
after
appear.
This
sort
of
reasoning
makes
mockery
of
has
expanded
that
disregarded.
finality
been
collateral
convictions.
value
often
is
noted
review
that
is
one
the
of
the
casualties
finality
of
of
criminal
typical
when
principle
empty
and
hollow
is
about
to
be
with
no
meaning
But the
See McCleskey
time
of
defense
counsel
who
might
otherwise
turn
their
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
makes
actually
it
be
more
doubtful
imposed,
criminal law.
it
that
announced
eviscerates
the
punishment
deterrent
will
effect
of
(plurality opinion).
in
recognized
judges
the
first
long
sense
ago,
of
instance,
there
is
since,
nothing
responsibility,
of
as
more
the
Professor
Bator
subversive
of
inner
subjective
subtle
acceptance
art
of
the
of
judging
notion
well,
that
all
64
than
the
an
shots
indiscriminate
will
always
be
error
repetitious
litigation
under
correction
disparages
the
the
entire
guise
of
criminal
344
U.S.
443,
536
result).
In
annually,
of
succeeded.
Much
and
n.8
(1953)
recent
which
(Jackson,
years,
fewer
they
than
J.,
concurring
have
heard
one-half
of
close
one
in
to
the
20,000
percent
have
Expensive,
N.Y.
Times,
Apr.
16,
2011,
at
WK8.
people
may
and
error
finality
disagree
over
correction,
the
but
proper
it
is
tradeoff
not
up
to
cleared
by
our
current
system,
Congress
alone
focus
of
such
review
is
on
whether,
in
the
direct
the
United
Whitesides
undisputed
States.
sentence
law
in
was
force
28
U.S.C.
2255(a).
properly
imposed
at
time,
the
violation.
66
according
there
was
Because
to
no
the
such
power
federal
at
Congresss
expense.
post-conviction
review,
As
is
often
the
dissatisfaction
case
with
in
the
should
attack.
be
selectively
utilized
device
for
collateral
its
constitutional
authority,
not
to
judges
through
the
of
disregarded.
of
appealability,
limitation,
doctrines
pertinent
of
retroactivity,
precedents
are
all
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.
majoritys
approach
devalues
collateral
review
by
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.
post-conviction
intended
role
violation
of
review
at
a
the
courts
unrecognizable
Founding:
to
jurisdiction
as
compared
challenge
or
to
sentences
detention
by
its
in
the
This
path
vindicates
no
fundamental
Maj. Op. at
liberty.
It
only
68
sentences
that
were
imposed
years
earlier
under
69