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Witcher v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

May 18, 2017

MARTINEZ O. WITCHER, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge.

         Martinez 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.

         I. Background

         In 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 indictment.
(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 statement.

         II. Discussion

         a. Rule 60(b) Motion

         Now, 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 Court.

         Lower 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).

         Witcher 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.[1] 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 ...


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