Witcher v. Clarke, 7:16-cv-00335

Background

Martinez O. Witcher, a Virginia inmate, challenged his 2004 convictions (armed statutory burglary, robberies, malicious bodily injury, firearm offenses) and 48-year sentence.
Witcher filed a Rule 60(b)(4) motion and, two weeks later, a 28 U.S.C. § 2254 habeas petition in federal court seeking to void his state-court burglary conviction (arguing the court improperly struck the "nighttime" element) and raising five related grounds.
Respondent moved to dismiss; the court treated the Rule 60(b) filing as a habeas-style attack on the state judgment and docketed a § 2254 petition; briefing was complete.
The court evaluated whether Rule 60(b) could provide relief, whether Witcher made a Schlup actual-innocence gateway showing, and whether the § 2254 petition was timely under AEDPA § 2244(d)(1).
The court found Rule 60(b) unavailable to overturn state convictions, Witcher failed to show actual innocence or a miscarriage of justice, and his § 2254 petition was time-barred without tolling or equitable excuse.
The court granted respondent’s motion to dismiss both the Rule 60(b) motion and the § 2254 petition and denied a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 60(b) can vacate a state criminal conviction	Witcher: Rule 60(b)(4) should void the state burglary conviction as void for striking "nighttime" element	Respondent: Rule 60(b) governs federal civil proceedings and cannot directly overturn state-court criminal judgments	Court: Rule 60(b) does not provide a vehicle to attack state convictions; unavailable here
Whether federal district court may conduct appellate review of state-court judgment	Witcher: federal court should correct state-court error on indictment amendment/element	Respondent: Lower federal courts lack jurisdiction to perform appellate review of state-court judgments outside habeas corpus	Court: Jurisdiction for appellate review lies with state appellate courts and the U.S. Supreme Court; district court cannot act as state appellate court
Whether Witcher made a Schlup actual-innocence gateway showing to excuse defaults	Witcher: claims and statements establish innocence and warrant review	Respondent: Witcher presents only conclusory assertions and no new, compelling evidence	Court: No colorable Schlup showing; gateway not opened
Whether the § 2254 petition is timely under AEDPA and subject to tolling	Witcher: impliedly seeks relief despite delay; argues errors justify consideration	Respondent: Petition is untimely; no statutory or equitable tolling or extraordinary circumstances	Court: Petition is time-barred under § 2244(d)(1); no tolling or miscarriage of justice excuses delay

Key Cases Cited

Plyler v. Moore, 129 F.3d 728 (4th Cir. 1997) (lower federal courts lack jurisdiction to conduct appellate review of state-court judgments outside habeas)
Wright v. Angelone, 151 F.3d 151 (4th Cir. 1998) (state-law interpretation claims are generally not cognizable on federal habeas absent a miscarriage of justice)
Gonzalez v. Crosby, 545 U.S. 524 (U.S. 2005) (limitations on use of Rule 60(b) in federal habeas to attack underlying state convictions)
Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (actual-innocence gateway standard to excuse procedural defaults)
Holland v. Florida, 560 U.S. 631 (U.S. 2010) (standard for equitable tolling: diligence and extraordinary circumstance)
Pace v. DiGuglielmo, 544 U.S. 408 (U.S. 2005) (clarifying equitable tolling in the AEDPA context)
Dowell v. State Farm Fire & Cas. Co., 993 F.2d 46 (4th Cir. 1993) (Rule 60(b) is not a substitute for appeal and is inappropriate to directly challenge state convictions)
Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000) (discussing standards for habeas claims and procedural default)
United States v. Sosa, 364 F.3d 507 (4th Cir. 2004) (ignorance of the law is not a basis for equitable tolling)