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April 9, 2014

Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions

Though one needs to be a hard-core federal sentencing or habeas aficionado to really enjoy all the action, even casual fans may want to check out the extraordinary work of a Fourth Circuit panel yesterday in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here).  Excerpts from the three separate opinions provides a flavor of all the action, but a full read is needed to understand and appreciate the passion that is reflected in the passages quoted below.

To begin, writing for the panel majority, Judge Gregory explains the legal basics at the outset:

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.

More than 30 pages later comes a concurring opinion by Judge Davis that runs only two pages, but effectively highlights the heart of the issues splitting this panel (and the circuit courts more generally). Here is an excerpt:

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....

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 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.

Finally, Judge Wilkinson provides an addition 30+ pages to explain his views about why the panel majority gets this matter so very wrong.  Here is how his lengthy opinion starts and ends:

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....

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 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.

April 9, 2014 at 10:24 AM | Permalink


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Can't wait to read it. The phrase "settled science" has always seemed absurd to me. It has a connotation of a scold to those who question. It also has a chilling effect on continued exploration.

"Settled Law" may be the same when the phrase is used in considering justice.

Posted by: beth | Apr 9, 2014 10:54:02 AM

The majority picked the result it wanted and then bended and perverted 2255 law to get there. This will be reversed in due time by SCOTUS or the 4th Circuit en banc. There really isn't even a need to delve into the merits here because the 2255 petition is time-barred. The equitable tolling analysis adopted by the majority is flimsy, at best.

Posted by: Zachary B. | Apr 9, 2014 12:28:08 PM

For a long time now, the Fourth Circuit has set itself apart on whether a defendant can challenge a career offender designation in a 2255 petition based on post-sentencing case law. See U.S. v. Maybeck 23 F.3d 888, 892 (4th Cir. 1994)

"The parties do not dispute that Maybeck was not convicted of armed burglary in 1973. The government argues, however, that at the time Maybeck was sentenced, it would have been permissible for the government to argue that his third degree burglary conviction was a crime of violence, making Maybeck a career offender. Under United States v. Wilson, 951 F.2d 586, 588 (4th Cir.1991), cert. denied, 504 U.S. 951, 112 S.Ct. 2294, 119 L.Ed.2d 218 (1992), a proper inquiry, for sentencing purposes, into a defendant's prior convictions should focus on the elements of the offense as opposed to the actual conduct of the defendant. The government argues that since Maybeck was sentenced in 1989, two years before Wilson, a conduct-based inquiry would still be permissible. As the magistrate pointed out in his Memorandum and Recommendation, however, it is unclear that the government could have argued that the conduct underlying the attempted third degree burglary of the drug store made it a crime of violence, since it does not appear that Maybeck actually possessed a weapon or threatened the use of physical force at the time."

Posted by: Carmen Hernandez | Apr 9, 2014 11:33:54 PM

"To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint."

Music to my ears.

Posted by: John K | Apr 10, 2014 11:21:57 AM

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