United States District Court, D. South Carolina, Spartanburg Division
OPINION & ORDER
TIMOTHY M. CAIN, District Judge.
This matter is before the court on Adrian Jeter's ("Jeter's") Motion for Reconsideration. (ECF No. 562). Jeter contends that in Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014), the Fourth Circuit Court of Appeals announced an intervening change of law under which his habeas petition is not barred as second or successive. For the reasons below, the motion is denied.
On March 30, 2004, Jeter pleaded guilty to conspiracy to distribute and to possess with intent to distribute fifty (50) grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 184). On June 21, 2004, United States District Judge Henry F. Floyd sentenced Jeter to three hundred sixty (360) months imprisonment, followed by ten (10) years of supervised release. (ECF No. 254). Judgment was entered on June 29, 2004. (ECF No. 267). Jeter appealed his conviction and sentence on July 7, 2004, challenging the validity of his guilty plea and the propriety of his sentence. (ECF No. 275). Specifically, Jeter challenged his classification as a career offender. On March 3, 2006, Jeter's conviction and sentence were affirmed. (ECF No. 307). Thereafter, on January 9, 2007, Jeter filed his first § 2255 motion (ECF No. 312), which the court subsequently denied. (ECF No. 395). Jeter filed a second § 2255 motion on January 31, 2011, which the court denied as successive. (ECF No. 532). Jeter then filed a motion to alter judgment (ECF No. 535), which the court denied (ECF No. 559).
As noted above, Jeter contends that in Whiteside, the Fourth Circuit announced an intervening change of law under which his habeas petition is not barred as second or successive. However, the decision in Whiteside does not provide support for Jeter's argument. In Whiteside, the court in a 2-1 decision held that equitable tolling was applicable to a petitioner who sought relief pursuant to § 2255 and alleged an erroneous application of the career offender enhancement under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). However, the petitioner in Whiteside had never filed a prior § 2255 motion, and thus, the court did not consider whether the provisions of § 2255(h)(2) would be satisfied such that this issue could be raised in a successive § 2255 motion.
Additionally, the court notes that on July 10, 2014, the Fourth Circuit entered an order granting a rehearing en banc in Whiteside. Whiteside v. United States , C/A No. 13-7152, 2014 WL 3377981 (4th Cir. July 10, 2014) (unpublished). Accordingly, the panel opinion in Whiteside has been vacated. See 4th Cir. R. 35(c); United States v. Geddings, 278 F.App'x 281, 286 n. 6 (4th Cir. 2008) (holding that "[u]nder Fourth Circuit rules, granting of rehearing en banc ...