                       ON REHEARING EN BANC

                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-7152


DEANGELO MARQUIS WHITESIDE,

                Petitioner - Appellant,

           v.

UNITED STATES OF AMERICA,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00069-MR-1; 1:12-cv-00118-MR)


Argued:   September 18, 2014            Decided:   December 19, 2014


Before TRAXLER, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING,
GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, THACKER and
HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.


Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler, and Judges Niemeyer,
Motz, King, Shedd, Duncan, Agee, Keenan, Floyd, Thacker and
Harris joined.    Judge Gregory wrote a dissenting opinion, in
which Senior Judge Davis joined. Judge Wynn wrote a dissenting
opinion. Judge Diaz did not participate in this decision.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.        ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.




                               2
WILKINSON, Circuit Judge:

     Deangelo Whiteside pled guilty to a charge of possession

with intent to distribute at least 50 grams of cocaine base,

pursuant     to   21   U.S.C.     §    841(a)(1).      Based   upon   his    criminal

record, he received the career offender enhancement under the

United States Sentencing Guidelines and was sentenced to 210

months imprisonment. Whiteside now raises various claims on a 28

U.S.C.   §   2255      petition       arguing   that    his    sentence     should   be

vacated in light of United States v. Simmons, 649 F.3d 237 (4th

Cir. 2011) (en banc). In accordance with the relevant statutes,

and in reliance upon Supreme Court and circuit precedent, we

hold that the filing of the § 2255 petition was untimely, and we

therefore affirm the district court’s dismissal of the petition.

We decline to address the other claims raised by the petitioner.

                                           I.

     Starting in 2007, various drug dealers in Asheville, North

Carolina,     began     identifying       Deangelo     Marquis    Whiteside     as   a

wholesale crack cocaine distributor in the area. Following an

investigation, Whiteside was charged on July 22, 2009 in the

Western District of North Carolina with one count of possession

with intent to distribute more than 50 grams of cocaine base in

violation of 21 U.S.C. § 841(a)(1). Prior to his plea agreement,

the government notified Whiteside that it intended to pursue an

enhanced penalty under 21 U.S.C. § 851 based on his 2002 North

                                           3
Carolina conviction for possession with intent to manufacture,

sell, or deliver a controlled substance.

      The     presentence       report       determined           that       petitioner       was

accountable for 1951.9 net grams of powder cocaine and 468.3 net

grams    of   cocaine       base.    Under       21    U.S.C.     §       841(b)(1)(A),       this

quantity      of    drugs     would       have       subjected    him       to     a    mandatory

minimum of ten years in prison. The report detailed as well

Whiteside’s         lengthy         criminal          record,         including          numerous

controlled-substances offenses, assault with a deadly weapon on

a government officer, and additional counts of assault, hit and

run, and resisting a public officer, which, independent of any

career      offender      enhancement,           established          a    criminal       history

category of V. See JA at 137. Whiteside did, however, qualify

for the career offender sentencing enhancement under § 4B1.1 of

the   United       States     Sentencing          Guidelines          based      on     the   2002

conviction         and    another     1999       North     Carolina          conviction        for

possession         with    intent     to     manufacture,             sell,      and     deliver

cocaine.

        The presentence report, accepted by the district court,

recommended an advisory guidelines range of 262 to 327 months

based on the offense conduct, Whiteside’s criminal record, and a

three-level        reduction        for    acceptance       of        responsibility.          The

government         made   a   motion       under        § 5K1.1       of     the       Sentencing

Guidelines for a downward departure for substantial assistance,

                                                 4
which the court accepted.          In light of the motion and after full

consideration of the sentencing factors set forth in 18 U.S.C.

§ 3553(a), the district judge ultimately sentenced Whiteside to

210 months. The court entered judgment on July 20, 2010, and

petitioner did not pursue a direct appeal. His conviction became

final on August 3, 2010, when his time for appeal expired.

       On May 18, 2012, petitioner filed a motion under 28 U.S.C.

§ 2255   to   vacate   his   sentence       in   light   of    United     States    v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). He argued that

the sentence should be vacated because after Simmons his prior

drug   offenses   would      no    longer    qualify     as    predicate     felony

convictions for purposes of sentencing enhancements, including

the career offender enhancement under § 4B1.1 of the guidelines.

See Appellant’s Br. at 5. Assuming he would again receive a

three-level    reduction     for    acceptance     of    responsibility       and    a

substantial    assistance     downward      departure,        Whiteside    contends

that, if resentenced, he would be subject to a markedly lower

advisory guidelines range. Id. The government responds that the

district court “possessed both the statutory authority and the

discretion to impose the sentence it imposed, and were this case

remanded and [p]etitioner resentenced, the district court could

properly impose the same sentence, even without application of

the career-offender enhancement.” Gov’t Br. at 47.



                                        5
       The        threshold    issue      before     this       court    concerns     the

timeliness of Whiteside’s § 2255 petition. The district court

for the Western District of North Carolina denied petitioner’s

motion as untimely and declined to apply equitable tolling. A

divided panel of this court vacated the sentence and remanded

for resentencing, holding that the statutory limitations period

should      be     equitably   tolled       and    that   Whiteside’s      claims    were

otherwise         cognizable   on     collateral       review.     See    Whiteside    v.

United States, 748 F.3d 541 (4th Cir. 2014). A majority of the

active judges in the circuit voted to rehear the case en banc.

See Order Granting Rehearing En Banc of July 10, 2014. We now

hold       that    the   petition    is     untimely      and   affirm    the   district

court’s dismissal of it.

                                             II.

       Petitions for collateral relief filed pursuant to 28 U.S.C.

§ 2255 are subject to a one-year statute of limitations governed

by § 2255(f). 1          The statute provides that the one-year clock is

triggered by one of four conditions, whichever occurs latest:

       (1) the date on              which    the    judgment     of     conviction
       becomes final;

       (2) the date on which the impediment to making a
       motion created by governmental action in violation of
       the Constitution or laws of the United States is

       1
       This discussion is modified and adapted from section II of
the dissent to the panel’s original decision in this case. See
748 F.3d 541, 556 (4th Cir. 2014).

                                              6
       removed, if the movant was prevented from making a
       motion by such governmental action;

       (3) the date on which the right asserted was initially
       recognized by the Supreme Court, if that right has
       been newly recognized by the Supreme Court and made
       retroactively  applicable   to  cases   on  collateral
       review; or

       (4) the date on which the facts supporting the claim
       or claims presented could have been discovered through
       the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4).

                                         A.

       Petitioner        contends       that   his      claim      falls      under

§ 2255(f)(4), and that United States v. Simmons, 649 F.3d 237

(4th   Cir.   2011)      (en   banc),    qualified      as   a   new    “fact”   for

purposes of that provision.              Whiteside’s suit would be timely

under this theory, since he filed his petition less than a year

after Simmons was handed down.

       Whiteside    grounds     his     argument   on    the     Supreme   Court’s

decision in Johnson v. United States, 544 U.S. 295 (2005).                       In

Johnson, the defendant’s sentence in the original proceeding was

enhanced on the basis of two state convictions, one of which was

later vacated.       Following vacatur, Johnson sought federal post-

conviction relief, contending that his enhanced sentence was no

longer valid.       Johnson’s conviction had become final more than a

year    before     his   § 2255     petition   was   filed,       but   the   Court

concluded that the vacatur qualified as a new fact for purposes


                                          7
of subsection (f)(4).      See Johnson, 544 U.S. at 300-02.          As the

Court noted:

      We commonly speak of the “fact of a prior conviction,”
      and an order vacating a predicate conviction is spoken
      of as a fact just as sensibly as the order entering
      it. In either case, a claim of such a fact is subject
      to proof or disproof like any other factual issue.

Id. at 306-07 (internal citation omitted).

      Johnson     does   not   govern       Whiteside’s     claim.   Simmons

represented a change of law, not fact.              The circuits to have

considered this type of issue have uniformly reached the same

conclusion.     See, e.g., Phillips v. United States, 734 F.3d 573,

580-83 (6th Cir. 2013) (finding the petition untimely where an

intervening change in the law was insufficient to render the

petitioner actually innocent); Lo v. Endicott, 506 F.3d 572, 575

(7th Cir. 2007) (finding that an intervening change in law was

not a new factual predicate sufficient to reset the statute of

limitations period under AEDPA); E.J.R.E. v. United States, 453

F.3d 1094, 1098 (8th Cir. 2006) (rejecting an intervening change

in   law   as   insufficient   to   reset   the   statute   of   limitations

period under AEDPA and declining to equitably toll the statute

of limitations); Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th

Cir. 2005) (same); see also Minter v. Beck, 230 F.3d 663, 666

(4th Cir. 2000) (rejecting, in a similar context, defendant’s

attempt to invoke a change in law as an impediment to filing a



                                      8
habeas      petition       sufficient      to        toll       AEDPA’s        statute       of

limitations). 2

      Contrary to the vacatur at issue in Johnson, Simmons did

not directly alter Whiteside’s legal status as a prior state

offender.       See Lo, 506 F.3d at 575.              A conviction is a fact for

sentencing purposes, but a relevant legal rule is not.                               Simmons,

“unlike a predicate conviction, is a ruling exclusively within

the domain of the courts and is incapable of being proved or

disproved.”          E.J.R.E.,     453    F.3d       at       1098.      This       point   is

illustrated by the simple observation that “[w]e would never

. . .     ask   a   jury   to   decide    whether         a    judicial       decision      had

indeed changed [the] law in the relevant way, nor would the

parties introduce evidence on the question.” Shannon, 410 F.3d

at 1089.        Indeed, if this change in law is a “fact,” then what

would not be?

      Instead       of     altering      the     factual          landscape,          Simmons

announced       a    generally     applicable         legal           rule.     A    decision

“establishing an abstract proposition of law arguably helpful to

the     petitioner’s       claim    does       not        constitute          the    ‘factual

predicate’ for that claim.”              Id. Decisions that change the legal

significance        of   certain   facts       without        modifying       them    do    not


      2
       The statute of limitations provisions in AEDPA under 28
U.S.C. § 2244(d)(1)(A)-(D) and 28 U.S.C. § 2255(f)(1)-(4) are in
all material respects identical.

                                           9
qualify    under   (f)(4).          Simmons      did    precisely      this:      unlike    a

vacatur     decision,         it     altered      the      legal       significance        of

Whiteside’s prior convictions without amending the convictions

themselves. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)

(“Time    begins   when       the    prisoner      knows       (or    through     diligence

could    discover)      the    important       facts,      not       when   the    prisoner

recognizes their legal significance.”); see also United States

v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).

     Whiteside’s (f)(4) argument fails for the additional reason

that it would effectively nullify (f)(3), which provides for

tolling in instances where the defendant’s claim is founded on a

right     “newly     recognized        by      the      Supreme       Court       and    made

retroactively applicable to cases on collateral review.”                                   28

U.S.C. § 2255(f)(3).          As the Eighth Circuit has reasoned:

     [The specific criteria enumerated in (f)(3) for
     tolling the limitations period] impliedly reject[] the
     notion that the creation of a new right by the Supreme
     Court that is not made retroactive to cases on
     collateral review, other rulings of law by the Supreme
     Court, and decisions taken from the courts of appeal
     in all instances, could trigger any of the limitations
     periods enumerated under § 2255.

E.J.R.E., 453 F.3d at 1098.

     If changes in law are cognizable under (f)(4), then (f)(3)

becomes superfluous because any claim brought under (f)(3) could

also be brought under (f)(4).                  See Lo, 506 F.3d at 575.                  “To

suggest,    as   [the    petitioner]          does,     that    any    decision     by   any


                                            10
court on any issue could constitute a ‘factual predicate’ would

swallow up the specifically delineated limitations in” (f)(3).

Id.    at    576.         These       considerations         indicate       that       “subsequent

interpretations of the law can be the basis of delay in filing a

§ 2255      motion        only    in    accordance          with    §    2255(f)(3)”       --     not

(f)(4).        Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th

Cir.    2011)       (en    banc)       (internal       quotation         marks        omitted).    In

other       words,    Whiteside’s          view       would        render       the    statute    of

limitations         virtually          without    limits.         Notably,       Whiteside       does

not     even    attempt          to     argue        that    his        claim    satisfies        the

requirements specified in (f)(3).

                                                 B.

       Whiteside asserts in the alternative that if we reject his

statutory       argument,          the     statute          of     limitations          should    be

equitably tolled.            Equitable tolling of petitions for collateral

review is available only when a defendant demonstrates “(1) that

he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely

filing.”       Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation       marks        omitted).               Under       this     court’s       precedent,

equitable tolling is appropriate in those “rare instances where

-- due to circumstances external to the party’s own conduct --

it    would    be    unconscionable             to    enforce       the     limitation      period

against the party and gross injustice would result.”                                      Rouse v.

                                                 11
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris

v.    Hutchinson,       209    F.3d      325,    330    (4th       Cir.   2000))        (internal

quotation marks omitted); see also United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004).

       Whiteside claims that he was prevented from timely filing

by the unfavorable precedent that would have governed his claim

had    he    sued   prior      to     Simmons.          The        standard    announced         in

Holland, however, focuses not on whether unfavorable precedent

would have rendered a timely claim futile, but on whether a

factor beyond the defendant’s control prevented him from filing

within the limitations period at all.                         See Shannon, 410 F.3d at

1090.        Although     Simmons        plainly       made    a    collateral          attack   on

Whiteside’s sentence more plausible, nothing prevented Whiteside

from    filing      his       petition      within       the        one-year       statute       of

limitations.        See E.J.R.E., 453 F.3d at 1098.

       The    Supreme     Court       has   made       clear       that   alleged        futility

cannot serve as “cause” for a procedural default in the context

of    collateral     review.        As   the     Court    emphasized          in    Bousley      v.

United States, “futility cannot constitute cause if it means

simply that a claim was unacceptable to that particular court at

that particular time.”              523 U.S. 614, 623 (1998) (quoting Engle

v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (internal quotation

marks       omitted).     Every      case       “presents      a     myriad        of    possible

claims.” Engle, 456 U.S. at 133. The demands of finality oblige

                                                12
a   petitioner   to   raise   those    claims    that    might   possibly   have

merit even where “he thinks [the court] will be unsympathetic to

the    claim;”   otherwise    the     claim    is   considered    procedurally

defaulted. Id. at 130.         It would be anomalous to contend that

futility -- something the Supreme Court has clearly said cannot

serve as cause for procedural default – does nonetheless serve

as cause for failure to timely file a § 2255 petition. For the

law of procedural default and that of equitable tolling address

the same basic question of when failures to raise claims are to

be deemed excusable.

       This court’s decision in Minter v. Beck confirms this line

of reasoning. 230 F.3d 663 (4th Cir. 2000). In that case, as

here,   the   defendant’s     claim    originally       seemed   foreclosed    by

extant precedent.      After the issuance of a favorable decision,

Minter sought to collaterally attack his sentence, invoking a

provision equivalent to § 2255(f)(2).                  He contended that the

newly issued decision, by nullifying the unfavorable precedent

that    had   previously   barred     his     claim,    served   to   remove   an

“impediment” to filing.        After rejecting this argument, we held

that equitable tolling was inappropriate.                Minter, 230 F.3d at

666-67. We reasoned that unfavorable precedent may have rendered

a timely claim unsuccessful but did not operate to bar Minter

from making the attempt.       This court echoed the Supreme Court in



                                       13
saying that “futility . . . is not a valid justification for

filing an untimely” petition.         Id. at 666.

        Nothing in Holland undermines these holdings.                   Though the

Court     there   cautioned     against      a    “too    rigid”       approach     to

equitable tolling, it nonetheless made clear that federal courts

were     to    invoke    the    doctrine         only    in    cases     of     truly

“extraordinary circumstances.” Holland, 560 U.S. at 634, 649. In

that case, petitioner was the victim of extraordinary negligence

by his attorney, who not only failed to file his federal habeas

petition in a timely fashion, but also failed to communicate

with petitioner, failed to inform him that the Florida Supreme

Court    had   decided    his   case,     and     ignored     his   many      letters

repeatedly emphasizing the importance of preserving his claims

for federal review. Id. at 652. Furthermore, the Florida courts

repeatedly denied petitioner’s attempts to file pro se or have

his attorney removed for this record of ineptitude. Id. at 653.

But those facts are far afield from the case at bar, which

involves unimpeded access to federal court for claims brought

there all the time.

        Tellingly, Whiteside makes no allegation that he was unable

to file in a timely fashion -- only that doing so would probably

have been unsuccessful in light of extant case law.                        But that

allegation is manifestly insubstantial given the many defendants

who    filed   suits    prior   to   Simmons       asserting    the     exact     same

                                        14
substantive    claim     that   Whiteside      now   raises,    including,   of

course, Simmons himself.           See, e.g., United States v. Brandon,

376 F. App’x 343 (4th Cir. 2010) (per curiam) (unpublished);

United States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (per

curiam) (unpublished); United States v. Simmons, 340 F. App’x

141 (4th Cir. 2009) (per curiam) (unpublished), vacated, 130 S.

Ct. 3455 (2010).        These claims were not entirely meritless even

under then-existing precedent: the Supreme Court’s decision in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth

Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th

Cir. 2008), strongly foreshadowed Simmons.                Equitable tolling

thus may not be applied where, as here, the only impediment to

timely filing was the discouragement felt by petitioner when

calculating his odds of success.

                                      III.

     Whiteside insists, however, that the disparity in circuit

law between then and now justifies setting aside the limitations

period.    That      contention,    however,    overlooks      the   open-ended

nature    of   his     equitable    tolling    arguments.      Roughly   80,000

persons are sentenced by federal district courts each year, and

“[p]recedential decisions come pouring out of the federal courts

of appeal and the Supreme Court” routinely. Hawkins v. United

States, 706 F.3d 820, 824 (7th Cir. 2013). If every favorable

precedential decision could become, as Whiteside would have it,

                                       15
“a    ticket     to   being      resentenced,”          id.,      the   criminal      justice

system would need to “continually . . . marshal resources in

order to keep in prison defendants whose trials and appeals [and

sentences]       conformed           to        then-existing       constitutional       [and

statutory] standards.” Id. (quoting Teague v. Lane, 489 U.S.

288,    310      (1989)     (plurality            opinion))        (internal     quotations

omitted) (brackets in original).

       In other words, if we accepted Whiteside’s view, we would

be on the way to holding that a myriad of substantive changes in

law past the point of finality would suffice to equitably toll

the statute of limitations in § 2255(f) whenever it might be

conjectured that past and future outcomes would be different.

The    implications        of   any       such    argument        foreshadow    a    tectonic

shift of resources from trial and direct appeal to repetitive

rounds of collateral review. While resentencing is generally not

as    significant     an    encumbrance            as   a   retrial,     “the    cumulative

burden of resentencing in a great many stale cases could be

considerable.” Id. That, of course, is the precise prospect a

statute     of    limitations             is    enacted     to     prevent.     As   several

circuits have noted, it is quite improper to use the doctrine of

equitable        tolling        to    circumvent            the    express      limitations

contained in § 2255.             See, e.g., Lo, 506 F.3d at 576. A step of

this magnitude would require either an act of Congress or a



                                                 16
ruling from the Supreme Court, neither of which has come to

pass.

       Whiteside’s conviction became final on August 3, 2010. At

the time, he was sentenced under the sentencing scheme outlined

in United States v. Harp. See 406 F.3d 242 (4th Cir. 2005).                        On

August 17, 2011, the court, sitting en banc, reversed the panel

decision in Simmons, expressly overruling Harp and this court’s

treatment     of        predicate    convictions        for    career       offender

enhancements. See Simmons, 649 F.3d 237. Whiteside did not file

his motion to vacate his sentence in light of Simmons until May

18, 2012, almost two years after his conviction became final.

But the relevant limitations period under § 2255(f) is one year

after the conviction is final, not one year from a decision that

effectuates a change in circuit law.

       To appreciate the point, suppose three, five, or ten years

had passed between a conviction becoming final and the time when

some    change     in    circuit    law    occurred.    If    we   were    to   adopt

Whiteside’s argument, whenever there is a change in circuit law

of sufficient magnitude (whatever that is), a petitioner would

have a year to file after the change, even if many years had

passed since the conviction became final. That simply vitiates

the point of statutes of limitations in general and this one in

particular, namely that the relevant evidence not be stale or

missing.    Even    changes    in    law    must   be   applied    to     facts,   and

                                           17
statutes    of       limitation       reduce    the   risk    of    claims    being    less

accurately litigated long after the fact.

     It bears briefly summarizing just how much Whiteside would

trench    upon       the    prerogatives       of     other   institutions       to   find

equitable       tolling       in   these       circumstances.        Petitioner       would

circumvent       Congress’s        highly      refined    statute     of     limitations,

which specifically sets forth in § 2255(f)(3) when tolling would

lie as a result of a change in law, a criterion which petitioner

has manifestly failed to satisfy. Petitioner would further have

us disregard the Supreme Court’s pointed language in Bousley and

Engle    and     its       historic    limitation        of   equitable      tolling    to

extraordinary circumstances beyond a petitioner’s control. See

Holland v. Florida, 560 U.S. 631 (2010). In disregarding the

prerogatives of other institutions, we would invite additional

collateral          attacks    long     after       convictions      were     final    and

whenever a change in law of arguable import might appear. Every

statute        of      limitations       contemplates          by     definition        the

possibility          that      some     favorable         development        after     the

limitations period might occur. The legislative branch of our

government is entrusted to set the balance between the ends of

equity and the values safeguarded by according final judgments

due effect. It is not our office to reset or recalibrate that

balance in the case at bar. The judgment of the district court



                                               18
must accordingly be affirmed because the petition herein was not

timely filed. 3

                                                        AFFIRMED




     3
        The court wishes to express its appreciation both to Ann
Hester and Amy Ray for the fine quality of their advocacy in
this case.

                               19
GREGORY, Circuit Judge,                   dissenting,        with    whom       DAVIS,      Senior
Circuit Judge, joins:

       The majority today makes a choice.                           It has chosen not to

exercise its powers in equity – which the Supreme Court recently

affirmed       –    and    to    allow      a   gross      injustice       to    be    committed

against Deangelo Whiteside.                     Nobody disputes that Whiteside has

been    erroneously          designated         a    career    offender.           Still,      the

majority insists that he cannot challenge this mistake.                                       As a

result    of       our    decision,        Whiteside       faces    at    least       eight   more

years    in    prison.           It   is     simply       unjust    to    deny    someone       the

opportunity to receive a properly calculated sentence.                                      I must

dissent.

       Make        no    mistake      that      we    possess       the    power       to     grant

Whiteside the equitable relief he seeks and, indeed, to which he

is   entitled.             The   Supreme        Court      specifically         addressed      our

ability to do so a few years ago in Holland v. Florida, when it

reaffirmed a “presumption in favor” of equitably tolling AEDPA’s

statute of limitations.                  560 U.S. 631, 646 (2010) (emphasis in

original) (internal quotation marks omitted).                              “In the case of

AEDPA,”       wrote        the     Court,       “the       presumption’s         strength       is

reinforced          by     the     fact      that      ‘equitable         principles’         have

traditionally ‘governed’ the substantive law of habeas corpus

. . . .”           Id.     (quoting       Munaf      v.    Geren,    553    U.S.       674,    693

(2008)).           While    noting     AEDPA’s         basic   purpose      of     eliminating
delays, the Court clarified that the statute was never meant to

displace “prior law, under which a petition’s timeliness was

always determined under equitable principles.”                      Id. at 648.        The

Court was extraordinarily clear:               AEDPA’s statute of limitations

“does    not    set   forth    ‘an    inflexible       rule   requiring       dismissal

whenever’ its ‘clock has run.’”                  Id. at 645 (quoting Day v.

McDonough, 547 U.S. 198, 208 (2006)).

     The Court in Holland specifically rejected the majority’s

approach to equitable tolling in two ways.                    First, it made clear

that courts must be flexible and exercise their equitable powers

on a case-by-case basis instead of blindly following “mechanical

rules.”        Id. at 650 (quoting Holmberg v. Armbrecht, 327 U.S.

392, 396 (1946)).           Second, a court is not inexorably bound to

follow    past    precedent       when   doing    so    would       prevent    it     from

“‘accord[ing]         all   the      relief    necessary       to     correct        . . .

particular injustices.’”             Id. (quoting Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 248 (1944)).                           Instead, we

should    “follow[]     a   tradition     in    which    courts      of   equity      have

sought to ‘relieve hardships which, from time to time, arise

from a hard and fast adherence’ to more absolute legal rules,

which,    if    strictly      applied,    threaten      the    ‘evils     of       archaic

rigidity.’”      Id. (quoting Hazel-Atlas, 322 U.S. at 248).

     Despite this, the majority does exactly what Holland warns

against    by     applying      a    rigid     rule    that     results       in     gross

                                          21
injustice.       It was our own mistake that resulted in Whiteside’s

classification as a career offender, which we finally corrected

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc).     By    that    point,     however,          Whiteside   had    already     been

sentenced under a regime that wrongly turned a blind eye to the

particular circumstances of a defendant’s predicate convictions.

The   career     offender   enhancement           –    for   which     nobody   disputes

Whiteside is now legally ineligible – increased his Sentencing

Guidelines range from 140-175 months to 262-327 months.                         After a

government-requested downward departure, he was sentenced to 210

months.    Had Whiteside received an identical downward departure

without the enhancement, he would have received a sentence of

112 months.       This difference of more than eight years presents

precisely the kind of “situation[] [that] demand[s] equitable

intervention . . . to correct . . . [a] particular injustice[.]”

Holland, 560 U.S. at 650 (quoting Hazel-Atlas, 322 U.S. at 248).

      Rather      than     heed       the     Supreme        Court,      the    majority

constructs for itself and then hides behind false barriers to

doing    what    is   right.      I    of     course     recognize       that   we   have

previously found that the futility of a petitioner’s claim does

not constitute a circumstance external to his control justifying

an untimely section 2254 petition.                      Minter v. Beck, 230 F.3d

663, 666 (4th Cir. 2000).             However, the majority places too much

reliance    on    Minter    given      the    Supreme        Court’s    later   Holland

                                             22
decision. 1    Indeed, in concluding that Whiteside’s claim should

be   barred,   the    majority   primarily   relies    upon   cases    decided

prior to Holland.       See, e.g., Bousley v. United States, 523 U.S.

614 (1998); Engle v. Isaac, 456 U.S. 107 (1982).              Certainly the

Supreme Court was aware of its own precedent, yet still chose to

empower courts to exercise discretion when faced with individual

circumstances that might “warrant special treatment.”                 Holland,

560 U.S. at 650.       Although the majority correctly observes that

“[n]othing in Holland undermines the[] holdings” in Bousley and

Engle, Maj. Op. at 14, it is also true that nothing in Holland

prohibits      this    Court,    despite     Bousley    and    Engle,     from

nonetheless doing justice through the exercise of its equitable

powers.

      The majority furthermore attempts to justify its position

by contending that equitable tolling of Whiteside’s claim would

thwart the supposedly holy principle of finality, as well as

“trench upon the prerogatives of other institutions.”                 Maj. Op.

at 18.    This is simply untrue.       Just this year, pursuant to its

Congressional mandate, the United States Sentencing Commission


      1
       I find it glaringly inconsistent of the majority to warn
against “invit[ing] additional collateral attacks,” Maj. Op. at
18-19,   while   simultaneously   penalizing  Whiteside   for not
bringing a meritless petition in the time before Simmons was
decided, see Maj. Op. at 12 (“[N]othing prevented Whiteside from
filing    his   petition   within    the   one-year   statute  of
limitations.”).

                                     23
issued retroactive amendments to the Guidelines that will reduce

the base offense level for certain drug offenses by two.                See

Sentencing Guidelines for United States Courts, 79 Fed. Reg.

25,996, 26,004 (proposed May 6, 2014).           The Commission projects

over 46,000 offenders will be eligible for resentencing, though

not career offenders like Whiteside. 2          This development – which

only takes effect with the approval of Congress – exposes the

majority’s hyperbolic tendencies.          Although the majority accuses

equitable tolling of portending “a tectonic shift of resources,”

Maj. Op. at 16-17, apparently our legislative branch disagrees.

      When it comes to “the values safeguarded by according final

judgments due effect,” Maj. Op. at 19, I concur with Congress

that finality gives way to fairness.            And the 2014 Guidelines

amendments do not mark the first time our government has found

it   necessary   to    take   steps   towards   reducing   the   draconian

effects of our sentencing laws.            In 2010, after realizing that

over eighty percent of crack cocaine defendants were African

Americans, Congress took action to correct what had developed as

a    discriminatory     sentencing     scheme    by   passing    the   Fair

Sentencing Act.       See United States v. Blewett, 746 F.3d 647, 667

(6th Cir. 2013) (en banc) (Moore, J., concurring) (noting that

      2
       See News Release, U.S. Sentencing Comm’n, U.S. Sentencing
Commission Unanimously Votes to Allow Delayed Retroactive
Reduction in Drug Trafficking Sentences (July 18, 2014);
U.S.S.G. § 1B1.10(a)(2)(A).

                                      24
prior to the Act, “the average federal drug sentence for African

Americans was forty-nine percent longer than the average federal

drug sentence for Caucasians”).               It has also been more than one

year since our executive branch declined to enforce mandatory-

minimum penalties for low-level drug offenses, which, according

to our Attorney General, disproportionately affect communities

of color. 3

     My point is that the statistical deck was stacked against

Deangelo Whiteside from the beginning.                 Then, our mistake in

casting him a career offender relegated him to an even longer

term of imprisonment.       In the face of this mistake, it is ironic

that our branch of government is the one dragging its feet on

the road towards equal justice under the law.                Rather than take

the slightest step in defense of a citizen’s liberty, we throw

up our hands and say, “too little, too late.”                   And for what

reason?       To   avoid   the   chaos    that     would   befall   society   if


     3
       See Eric Holder, U.S. Attorney General, Remarks at the
Annual Meeting of the American Bar Association’s House of
Delegates (Aug. 12, 2013) (“We also must confront the reality
that – once they’re in the system – people of color often face
harsher punishments than their peers . . . .     This isn’t just
unacceptable – it is shameful.”).         Recently, the Justice
Department also expressed its confidence in a robust habeas
process by announcing a new policy that it will no longer ask
criminal defendants who plead guilty to waive the right to bring
future claims of ineffective assistance of counsel.     See Press
Release, U.S. Dep’t of Justice, Attorney General Holder
Announces New Policy to Enhance Justice Department’s Commitment
to Support Defendants’ Right to Counsel (Oct. 14, 2014).

                                         25
criminals were imprisoned according to a correct understanding

of the law?

     I dissent.




                              26
WYNN, Circuit Judge, dissenting:

       The majority opinion will, without a doubt, “drive citizens

to rub[] their eyes and scratch[] their heads.”                       United States

v. Foster, 674 F.3d 391, 395 (4th Cir. 2012) (Wilkinson, J.,

concurring in denial of rehearing en banc).                     “If one were to

inquire    of    an   objectively   reasonable         person    on     the    street

whether” a court should allow the correction of a sentencing

mistake caused solely by its own error—an error that will likely

cost   a   man    eight   years   of    freedom—no       doubt    the     citizen’s

“response would be ‘Of course.          Why do you ask?’”         Id.

       Habeas corpus allows courts “‘to cut through barriers of

form and procedural mazes’” to effectuate the writ’s ultimate

purpose: safeguarding individual freedom against lawless state

action and ensuring “that miscarriages of justice . . . are

surfaced   and    corrected.’”         Hensley    v.   Mun.     Court,    San    Jose

Milpitas Judicial Dist., Santa Clara Cnty., Cal., 411 U.S. 345,

350 (1973) (quoting Harris v. Nelson, 394 U.S. 286, 291 (1969)).

Not    surprisingly,      then,   the     Supreme      Court     has     repeatedly

affirmed    that      “‘the   principles         of    comity     and         finality

informing’” procedural restrictions on habeas corpus proceedings

“‘must yield to the imperative of correcting a fundamentally

unjust’”   punishment.        Schlup     v.   Delo,    513     U.S.    298,    320–21

(1995) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).

And by eschewing “mechanical rules” that prevent courts from
according     “the       relief     necessary        to   correct       .   .    .    particular

injustices,” the Supreme Court recently made plain that there

exists a “presumption in favor” of equitably tolling statutes of

limitations to habeas corpus petitions.                         Holland v. Florida, 560

U.S.   631,    646       (2010)     (internal        quotation         marks     and    citation

omitted).

       This   is     a    case     that      demands      a    yielding     of       “mechanical

rules” in favor of “the relief necessary to correct” a mistake

of our own making.               Id.     Deangelo Whiteside was sentenced as a

career   criminal         in     July    2010.       In       August    2011,     with     United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), this

Court corrected its misinterpretation of law that had led courts

in   this     Circuit       to    ignore       the     particular        circumstances        of

defendants’        predicate           convictions        for     sentencing           purposes.

Undisputedly,        in     light       of   Simmons,         Whiteside     was       no   career

criminal,      and       his     enhanced      “career         criminal”        sentence      was

premised on this Court’s erroneous interpretation of the law.

Accordingly,       in      May    2012,      Whiteside         petitioned       the    district

court to vacate his sentence.                    But because more than a year had

passed   since       his    sentencing,          Whiteside’s       petition          was   deemed

tardy.      Today, this Court refuses to set aside that formalistic

time bar in the name of equity.

       Strikingly, neither the law nor the facts of this case have

changed.      All that has changed is our interpretation of the law.

                                               28
In other words, we either forgot that “it’s our job to call

balls      and    strikes”—or         we     simply    got    the    call    dead   wrong.

Confirmation Hearing on the Nomination of John G. Roberts, Jr.

to Be Chief Justice of the United States: Hearing Before the S.

Comm.    on      the   Judiciary,          109th   Cong.     56   (2005)    (statement    of

Judge John G. Roberts, Jr.).                  Regardless of whether this Court’s

error was grounded in judicial activism or an honest mistake, it

certainly        was    not    Deangelo        Whiteside’s        fault—yet    today     the

majority comes to the stunning conclusion that he must pay the

price. 1

     Further,          the    other    interests       at    stake   here     eclipse    our

interest in finality.                 Indeed, “if finality were our only or

even the more important institutional goal, we would not permit

any postconviction relief at all.”                         Hawkins v. United States,

724 F.3d 915, 923 (7th Cir. 2013) (Rovner, J., dissenting from

denial of rehearing).             It is not finality, but rather “fairness

[that] is the lifeblood of our system of justice,” and “justice

requires         the   ability        to     rectify   substantial          uncontroverted


     1
       The majority opinion spills considerable ink explaining
why the judiciary should not bear the burden of its own mistake.
Those who were wrongly (over-)sentenced will surely sleep easier
knowing that the courts are not being overworked by too many
“tickets to being resentenced.”   Ante at 16.   The prison staff
that must look after wrongly-imprisoned defendants—not to
mention the taxpayers who foot the hefty bill for their
(wrongful) incarceration—might, however, take issue with the
majority’s calculus.

                                               29
judicial errors that cause significant injury.                         This is why in

our anthropomorphization of Justice, she is wearing a blindfold,

and not running shoes.”              Id.      Denying relief for the sake of

finality is particularly nonsensical where, as here, the issue

is    a   purely   legal    one      with        no    evidentiary     or        spoilation

problems,    the    sentence      is       federal       and    thus   skirts       comity

concerns,    the    financial     cost      of        incarcerating      Whiteside       for

years he should not spend in jail is surely enormous, and the

work associated with correcting Whiteside’s sentence—something

perhaps not even necessitating a formal resentencing hearing,

see, e.g., United States v. Hadden, 475 F.3d 652, 669 (4th Cir.

2007)—is likely minimal. 2

      “Even appellate judges are endowed with brains in the hope

and   expectation    that   they       will      be    used    to   obvious       purpose.”

Foster, 674 F.3d at 394 (Wilkinson, J., concurring in denial of

rehearing    en    banc).       If     rectifying         a    mistake      of     our   own

creation—one that will cost a man eight years of his freedom—




      2
       The district court did not err in applying pre-Simmons
case law and sentencing Whiteside as it did. The error was ours
and ours alone.   To the extent the majority’s decision to deny
habeas relief stems from its reluctance to reverse the district
court’s dutiful application of Fourth Circuit precedent, the
majority’s decision is misguided.   When an individual’s liberty
is at stake, I have every confidence that our district court
colleagues understand that our role as an appellate court is to
correct legal errors, including our own.

                                            30
does not constitute an “obvious purpose,” I do not know what

does.   Respectfully, I dissent.




                                   31
