Case Information
*1 eLERK': oFFlce .u . s plss cour AT DANVILLE, vA . FILE: MAY 1 3 2217 IN TH E U N ITED STATE S D ISTR ICT C O U R T JCJL c D i)Lh'M r; Eq FO R T H E W ESTER N DISTR ICT OF V IR G IN IA BY: Epu'lv E R O A NO K E DIV ISIO N M ARTINEZ 0 . W ITCHER, CA SE N O . 7:16CV 00335
Petitioner, M EM O R AN DU M O PIN IO N
V. By: H on. Jackson L. K iser H AROLD W .CLARK E,
Senior U nited States D istrict Judge R espondent.
M artinez 0 . W itcher, a Virginia inm ate proceeding pro m , has subm itted a pleading entitled CIRELIEF FROM A JUDGM ENT AND ORDER PURSUANT TO RULE 60B(4),'' seeking to vacate a 2004 conviction in the Pittsylvania County Circuit Court. Because W itcher's allegations as a whole sought to void the state court criminal judgment under which he is currently incarcerated, the coul't docketed his pleading as a petition for a m it of habeas corpus, pursuant to 28 U.S.C. j 2254. Two weeks afler his first pleAding, W itcher also submitted ml actual j 2254 petition. Respondent filed a motion to dismiss, and W itcher responded, making the matter ripe for disposition. After review of the record, 1grant the m otion to dism iss the m otion and petition.
1. Background ln 2004, W itcher was convicted of arm ed statm ory burglary, two cotmts 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 foMy-eight-years-im prisonm ent. The V irginia Coul't of Appeals aftirm ed his convictions, and the V irginia Suprem e Coul't refused review . A fter failing to receive habeas relief in the state court, he filed a federal habeas petition which Judge James Tlzrk dismissed in 2010 without prejudice for failure to comply with the conditional filing order.On July 14, 2016, W itcher filed a motion under Rule 60(b)(4) seeldng *2 to overtulm his armed statutory burglary conviction as void and jlzrisdictionally defective because the trial court çlfraudtllently stnzck out the çnighttime' elem ent of the indictm ent'' without authority. Additionally, W itcher filed a j 2254 petition with five grotmds:
(1) The Richardsons' statements were inconsistent.
(2) The trial court only struck out Glin the rlighttime'' and did not re-arraign W itcher on the nm ended indictm ent.
(3) The officer had his headlights on because it was raining atld not because it was dark outside.
(4) The double jeopardy clause was violated by the judge when the judge allowed an mnendment that he raised himself when the prosecution did not want to ask for an am endm ent.
(5) M rs. Richardson stated in the Victim Impact Report that she had no physical injlzries but at trial testified that she received bnlises from W itcher w hich w as a fraudulent statem ent. II. D iscussion
a. Rule 60*) M otion Now, W itcher relies on Rule 60(b) of the Federal Rules of Civil Procedure as authority for an order from this coul't to reverse his convictions in the Pittsylvania County Circuit Cotu't.
Lower federal courts, like this one, do not have jurisdiction to conduct appellate review of any state court's judgment. Plyler v. M oore, 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. j 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).
W itcher 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 çlgovel'n the procedure in al1 civil actions and proceedings in the United States district courts . . . .'' Fed. R. Civ. P. 1. Therefore, these nzles cnnnot provide a vehicle by which a litigant may seek relief from any state court ruling whatsoever, criminal or civil. 1 W itcher may only use Rule 60(b) to attack Eçsome defect in the integrity of the federal habeas proceedings.'' Id. at 532 (emphasis added). Since W itcher attacks his tmderlying state court criminal convictions and not the 2010 dismissal of his j 2254 petition, his claim fails under the Federal Rules of Civil Procedure.
Additionally, W itcher alleges that the circuit court erred in deciding whether to strike language in a state crim inal statute. H is claim is based entirely upon a state coul't intep reting a state law , w hich is outside the realm of federal habeas review except in circum stM ces show ing çça complete miscaniage of justice.''See W richt v. Ancelone, 151 F.3d 151, 158 (4th Cir. 1998). W itcher fails to dem onstrate that the state court's actions resulted in a com plete m iscaniage of justice; he fails to prove his actual innocence; therefore, his claim is not cognizable in federal coul't 2 .
l A Rule 60(b) motion is an extraordinary remedy that is Clnot a substitute for a timely and proper appeal,'' and thus is an ttinappropriate mechanism for directly challenging the validity of U state convictions.'' Dowell v. State Fal'm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993); Olsen v. Ancelone, 2015 WL 6873607, at # 1-2 (W .D. Va. Nov. 9, 20 l 5) (ç1(Rule 60(b)j may not be usedgl independently . . . to challenge or overturn a federal or state criminal conviction.''). Further, the application of Rule 60(b) is strictly limited on federal habeas review because of the potential to Sscircumventlj AEDPA'S requirements that a new claim be dismissed unless it relies on a new rule of constitutional 1aw or newly discovered facts.'' Gonzalez v. Crosbv. 545 U,S. 524, 53 1-32 (2005). 2 A colorable claim of acmal innocence can serve as a ttgateway'' to sectlre the adjudication of an othem ise unreviewable or defaulted claim. Schlup v. Delo, 5 13 U.S. 298, 3 15 (1995). 'The petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of Esome) new evidence.'' Id. at 327. W itcher does not assert a colorable showing of actual innocence under the Schlup standard so as to open that gateway to consideration of his defaulted claims. W itcher does not cite Schlup or M couiccin v. Perkins, 133 S. Ct. l 924 (2013), he does not present any new compelling evidence unavailable at trial or on appeal, and he only makes conclusory statementf regarding his innocence. See Pet'r's j 2254 Pet. 15, 17 (ECF No. 5) (<û1 just recently found out about these errors in my case and hopefully, l will be allowed to m ove forward w ith my action in this court because l've been trying for the last 10 years to prove my innocence to any court that would listen to m e.'' Also, tçplease allow m e to t5le a W rit of H abeas Corpus in the federal court so 1 can prove m y irm ocence to the court and go home to my childrenl''); see also, Burket v. Ancelone, 208 F.3d 172, 183 n.10 (4th Cir. 2000) (fmding that as
b. J 2254 Petition Regardless of W itcher's Rule 60(b) motion, his j 2254 petition is time-barred. Under j 2244(d)(1), a petitioner must file his federal habeas petition within one year f'rom the latest of when: (1) his conviction became ûnal by the conclusion of direct review or the expiration of the time for seeking such review, (2) any illegal state created impediment to filing was removed, (3) the United States Suprem e Coul't recognized a new, retroactively applied constim tional right, or (4) the factual predicate of the claim could have been discovered tllrough due diligence. 28 U.S.C. j 2244(d)(1).
A petitioner can Gçtoll'' the federal habeas statute of lim itation in tw o w ays: statm ory tolling and equitable tolling. Statutory tolling occurs w hen a petitioner files a state habeas petition within the federal stattlte of lim itation period. The federal habeas statute of limitation is then tolled for the duration of the state habeas proceeding.28 U.S.C. j 2244(d)(2). Equitable tolling occurs only if a petitioner shows (:C(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.'' Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544, U.S. 408, 418 (2005)).
W itcher's direct appeal and state habeas proceedings concluded several years ago. He has not satissed the requirements of any of the exceptional circllmstances under j 2244(* , he is not entitled to tolling, an 3 d he has not demonstrated a miscarriage of justice that would excuse his untimeliness. Therefore, his j 2254 petition is time-barred.
111. petitioner bears burden to raise cause and prejudice or actual innocence, a court need not consider either if not asserted by petitioner).
3 tt Ijgnorance of the 1aw is not a basis for equitable tolling.'' United States v. Sosa, 364 F.3d 507 512 (4th E , Cir. 2004).
For the foregoing reasons, 1 grant Respondent's motion to dismiss, and dismiss the 60(b) motion and the j 2254 petition for a writ of habeas corpus. Based upon my fnding that W itcher has not m ade the requisite substantial showing of a denial of a constitutional right as required by 28 U.S.C. 5 22534c), a certitscate of appealability is denied.
ENTER: This ï day of May, 2017. / % %
en or United States Distrid Judge