Witter v. Glunt

Filing 30

ORDER - IT IS HEREBY ORDERED that: 1. Witter's pro se motion (Doc. 22) for relief under Federal Rule of Civil Procedure 60(b)-to the extent that it can be construed as such-is DENIED. 2. A certificate of appealability shall not issue, as Witter has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed by Chief Judge Matthew W. Brann on 10/30/2023. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JODY D. WITTER,

No. 1:13-CV-00794

Petitioner,

(Chief Judge Brann)

v.
STEVEN GLUNT,
Respondent.
ORDER
OCTOBER 30, 2023
In 2013, Petitioner Jody D. Witter filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254.1 Approximately 15 months later, the Court2 dismissed
Witter’s Section 2254 petition as time-barred.3 Following a thorough statute of
limitations analysis, the Court determined that Witter had filed his petition 57 days
late.4 No basis for equitable tolling was asserted by Witter or independently
found,5 so the Court dismissed Witter’s petition and denied a certificate of
appealability.6

1
2
3
4
5
6

Doc. 1.
This case was previously assigned to the Honorable John E. Jones, III, who ruled on Witter’s
Section 2254 petition. See generally Docs. 18, 19.
See Doc. 18 at 3-9.
See id. at 7.
See id. at 7-9.
See id. at 9-10.

On June 25, 2014, Witter filed a two-page document labeled “Reply to
Respondent[’]s Response and Request for Relief under Extraordinary
Circumstances, Pursuant to Rule 60(b) (Fed.R.CIV.PROC.)”7 In that filing, Witter
appeared to argue that, if “Saturdays, Sundays, and legal holidays” were not
counted, his Section 2254 petition would not have been 65 days late (as
Respondent had asserted), but instead would only have been 45 days late.8 He also
claimed that he was seeking relief for “mistakes; Inadvertence; excusable neglect;
Newly discovered evidence; Fraud, Etc. i.e. misrepresentation 60(b)(3).”9 No
clarification was provided as to what basis Witter was actually asserting for Rule
60(b) relief beyond the 45-versus-65-days argument, nor did Witter proffer any
facts or analysis.10 Finally, Witter requested the following: “[I]f the court
request[s] that a formal motion be filed Pursuant [sic] to rule 60(b) that the court
will provide petitioner with the opportunity to so file.”11
On July 14, 2014, the Court granted Witter’s request to file a proper Rule
60(b) motion, giving him 14 days from the date of its Order to do so.12 Within the
allotted time, Witter filed another document labeled exactly the same as his
previous filing.13 The document was docketed—as labeled—as a “Reply,” rather
7
8
9
10
11
12
13

Doc. 20.
See id. ¶¶ 3-4.
Id. ¶ 5 (grammatical errors in original).
See id.
Id.
See Doc. 21 at 2.
Doc. 22.

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than a motion under Rule 60(b).14 Notably, instead of being a new, “formal
motion,” the document is a verbatim copy of Witter’s previous June 25, 2014
filing.15 It even includes the same request to be permitted to file a “formal motion”
if required by the Court.16 Accordingly, no action was taken on Witter’s July 23,
2014 filing (Doc. 22), likely because he had labeled it as a “reply” and not as a
motion, and because it was a carbon copy of his previous filing rather than the
formal Rule 60(b) motion that he had been directed to file.
Approximately one year later, Witter requested a copy of the docket sheet
from the Clerk of Court, and a courtesy copy was mailed to him.17 On November
5, 2015, Witter filed a “Petition to Amend to [sic] Federal Habeas Corpus,” which
the Clerk of Court labeled as a motion to “Amend/Correct.”18 In this motion,
Witter appeared to try to improperly raise an additional habeas claim.19 That
motion was deemed withdrawn when Witter did not file a supporting brief as
required by the Local Rules of Court.20
Witter’s case remained dormant for five years until he requested a copy of
the docket sheet in January 2020, which again was provided to him.21 Two months

14
15
16
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18
19
20
21

See id. & docket annotation.
Compare Doc. 20, with Doc. 22.
See Doc. 22 ¶ 5.
Doc. 23 & docket annotation.
Doc. 25 & docket annotation.
See id.
See Doc. 26 (citing LOCAL RULE OF COURT 7.5).
Doc. 27 & docket annotation.

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later, Witter filed a letter with the Court.22 In his March 2020 letter, Witter stated
that it had “been almost 6 years” since he had filed his Rule 60(b) motion in July
2014 without receiving a ruling, and asked the Court to render a judgment on the
motion.23 No action appears to have been taken on this letter, likely because it was
not an active motion and because no active Rule 60(b) motions appeared on the
docket.
Over three years later, in a letter dated September 11, 2023,24 Witter again
sought an update on the status of the Rule 60(b) motion that he believed he had
filed. In his letter, he asserted that he could not seek a certificate of appealability
regarding the denial of his Section 2254 petition without the Court ruling on his
(believed to be) pending Rule 60(b) motion.25
Following receipt of Witter’s September 11, 2023 letter, this case was
transferred to the undersigned. The Court will explain why Witter’s Rule 60(b)
motion is meritless.
First, Witter never properly filed a Rule 60(b) motion. After he sought leave
from the Court to file such a motion and the Court granted him permission,26
Witter simply refiled a carbon copy of his initial “Reply,” which contained no

22
23
24
25
26

Doc. 28.
See id.
Doc. 29.
See id. at 2.
See Doc. 21.

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substantive argument as to why Rule 60(b) relief should be granted (other than
simply quoting many of the reasons provided for relief in Federal Rule of Civil
Procedure 60(b) itself). Witter likewise failed to file a supporting brief, in
violation of Local Rule of Court 7.5. Thus, to the extent that Witter’s July 23,
2014 filing at CM/ECF Document 22 can even be considered a “formal” Rule
60(b) motion, it should have been deemed withdrawn when he did not file the
requisite supporting brief within 14 days of its filing.27
Even if the Court were to reach the merits of Witter’s “motion,” it still
plainly fails. First, there was no timing calculation error in the Court’s
determination that Witter’s Section 2254 statute of limitations had expired.
Saturdays, Sundays, and legal holidays are not counted in time calculations only
when the “last day of a period” falls on a Saturday, Sunday, or legal holiday.28
Otherwise, those days count for determining filing deadlines and statutes of
limitations. Witter’s Section 2254 petition was untimely, and he makes no valid
argument for why it was not. Witter does not even appear to argue that his petition
would have been timely if those particular days were not counted; it would have
just been less late.

27
28

See LOCAL RULE OF COURT 7.5.
See FED. R. CIV. P. 6(a)(1).

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Second, Witter cursorily recites several of the bases for relief from judgment
that appear in Federal Rule of Civil Procedure 60(b).29 He does not explain how
any of those provisions apply to his case or proffer any facts or law in support of
his assertions. Witter, in fact, provides no Rule 60(b) analysis whatsoever.
Accordingly, no relief could have been granted on Witter’s barebones assertions of
mistake, inadvertence, excusable neglect, newly discovered evidence,
misrepresentation, or fraud. And no relief is due now, either. Witter has simply
failed to offer any reason why Rule 60(b) relief from judgment should be granted
in his case.
AND NOW, upon consideration of the foregoing, IT IS HEREBY
ORDERED that:
1.

Witter’s pro se motion (Doc. 22) for relief under Federal Rule of Civil
Procedure 60(b)—to the extent that it can be construed as such—is
DENIED.

2.

A certificate of appealability shall not issue, as Witter has not made a
substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2).
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

29

See Doc. 22 ¶ 5.

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