United States District Court, W.D. Virginia, Roanoke Division
MARTINEZ O. WITCHER, Petitioner,
HAROLD W. CLARKE, Respondent.
Jackson L. Kiser Senior United States District Judge.
O. Witcher, a Virginia inmate proceeding pro se, has
submitted a pleading entitled "RELIEF FROM A JUDGMENT
AND ORDER PURSUANT TO RULE 60B(4), " seeking to vacate a
2004 conviction in the Pittsylvania County Circuit Court.
Because Witcher's allegations as a whole sought to void
the state court criminal judgment under which he is currently
incarcerated, the court docketed his pleading as a petition
for a writ of habeas corpus, pursuant to 28 U.S.C. §
2254. Two weeks after his first pleading, Witcher also
submitted an actual § 2254 petition. Respondent filed a
motion to dismiss, and Witcher responded, making the matter
ripe for disposition. After review of the record, I grant the
motion to dismiss the motion and petition.
2004, Witcher was convicted of armed statutory burglary, two
counts of robbery, malicious bodily injury, and three counts
of use of a firearm in the commission of a felony. The
Pittsylvania County Circuit Court sentenced him to
forty-eight-years-imprisonment. The Virginia Court of Appeals
affirmed his convictions, and the Virginia Supreme Court
refused review. After failing to receive habeas relief in the
state court, he filed a federal habeas petition which Judge
James Turk dismissed in 2010 without prejudice for failure to
comply with the conditional filing order. On July 14, 2016,
Witcher filed a motion under Rule 60(b)(4) seeking to
overturn his armed statutory burglary conviction as void and
jurisdictionally defective because the trial court
"fraudulently struck out the 'nighttime' element
of the indictment" without authority. Additionally,
Witcher filed a § 2254 petition with five grounds:
(1) The Richardsons' statements were inconsistent.
(2) The trial court only struck out "in the
nighttime" and did not re-arraign Witcher on the amended
(3) The officer had his headlights on because it was raining
and not because it was dark outside.
(4) The double jeopardy clause was violated by the judge when
the judge allowed an amendment that he raised himself when
the prosecution did not want to ask for an amendment.
(5) Mrs. Richardson stated in the Victim Impact Report that
she had no physical injuries but at trial testified that she
received bruises from Witcher which was a fraudulent
Rule 60(b) Motion
Witcher relies on Rule 60(b) of the Federal Rules of Civil
Procedure as authority for an order from this court to
reverse his convictions in the Pittsylvania County Circuit
federal courts, like this one, do not have jurisdiction to
conduct appellate review of any state court's judgment.
Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997).
Jurisdiction for appellate review of state court judgments
lies exclusively with superior state courts and, ultimately,
with the United States Supreme Court. Id.; 28 U.S.C.
§ 1257; but see Plyler. 129 F.3d at 732
(recognizing lower federal courts' jurisdiction to review
final judgments of state courts in federal habeas corpus).
also has no ground for direct relief from a state court
judgment under Rule 60(b). The Federal Rules of Civil
Procedure, by their own terms, only "govern the
procedure in all civil actions and proceedings in the United
States district courts . . . ." Fed.R.Civ.P. 1.
Therefore, these rules cannot provide a vehicle by which a
litigant may seek relief from any state court ruling
whatsoever, criminal or civil. Witcher may only use Rule 60(b)
to attack "some defect in the integrity of the
federal habeas proceedings."Id. at
532 (emphasis added). Since Witcher attacks his underlying