granting rehearing en banc in Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014)

granting rehearing en banc in Whiteside and thereby vacating the panel opinion

rejecting the defendant's contention that the court erred by considering matters not referenced in the government's memorandum in support of its motion for summary judgment, stating "[t]his contention is without merit because Federal Rule of Civil Procedure 56(c) permitted the district court to consider the evidence regardless of the fact that the government did not reference [it] in its initial memorandum in support of its motion for summary judgment"

In Whiteside v. United States, 578 Fed.Appx. 218 (4th Cir. 2014), the Fourth Circuit issued its en banc decision wherein it determined that the Simmons decision did not qualify as a new "fact" for purposes of Section 2255(f)(4).

In Whiteside, the Fourth Circuit determined that the one-year limitations period for filing a Section 2255 motion could be equitably tolled where the defendant alleged that the career offender enhancement was erroneous based upon Simmons. Whiteside v. United States, 748 F.3d 541, 548 - 53 (4th Cir. April 8, 2014), rev'd en banc, 2014 WL 7245453 (Dec. 19, 2014).

In Whiteside, the petitioner claimed he was entitled to equitable tolling because "he was prevented from timely filing by the unfavorable precedent that would have governed his claim had he sued prior to Simmons."