United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
the court is Petitioner Daniel Witucki's motion for
relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b). On January 23, 2004, Witucki, a state
prisoner, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The matter was assigned to a
magistrate judge who recommended that the petition be denied
as untimely and the case be closed. (Doc. 14.) This court
adopted the report and recommendation on June 7, 2004. (Doc.
15.) In the present motion, Witucki argues that he is
entitled to pursue his constitutional claims on the merits
because he has made a credible claim of actual innocence.
(Doc. 25, pp. 4-5 (relying on Satterfield v. Dist.
Att'y Phila., 872 F.3d 152, 159 (3d Cir. 2017) and
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013)
(holding that a habeas petitioner can pursue his
constitutional claims on the merits notwithstanding the
existence of a procedural bar to relief where the petitioner
makes a credible showing of actual innocence).) For the
reasons that follow, the motion will be denied.
from judgment pursuant to Rule 60(b) may be granted where
there has been fraud, mistake, newly discovered evidence, or
any other reason justifying relief. See Fed. R. Civ.
P. 60(b). A court should only grant relief pursuant to Rule
60(b)(6) “sparingly and in circumstances where, without
such relief, an extreme and unexpected hardship would
occur.” Swaka v. Healtheast, 989 F.2d 138, 140
(3d Cir 1993). Such circumstances will rarely occur in the
habeas context. Gonzalez v. Crosby, 545 U.S. 524,
issues presented in the instant 60(b) motion were presented
in Witucki's original § 2254 petition. Witucki has
not made a credible showing of actual innocence or that no
juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt. McQuiggin, 133 S.Ct. at
own testimony, McQuiggan admitted to killing Steven K.
Johnson on December 21, 1997. The following summarizes that
Petitioner and the victim had been involved with the same
woman, Karen Paris, for a number of years. By his own
testimony, Petitioner was aware of Mr. Johnson's
relationship with Ms. Paris since 1995, more than two years
prior to the murder. (N.T. p. 376) Further, he had been
suspicious of them since 1993 or 1994. (N.T. p. 369)
Petitioner had in fact pursued Mr. Johnson and Ms. Paris in
1995, ultimately stopping the vehicle Mr. Johnson was
operating and Ms. Paris was riding in and engaging in a
physical assault upon Mr. Johnson. (N.T. 384-87)
Further, Petitioner's actions the day of the murder
indicate that he had more than sufficient time to reflect
upon the actions he was taking. The triggering event he
relies upon seems to be that he found flowers and a card sent
by Mr. Johnson to Ms. Paris. (N.T. 406-07) Following the
discovery of the flowers, he went to the restaurant where Ms.
Paris worked where he remained for a period of time. He
testified that Mr. Johnson also entered the restaurant while
he was there but the[n] he left before Johnson did. (N.T.
408-11) He testified that he left and proceeded up the road a
short distance before turning around and returning to the
restaurant where he saw Mr. Johnson leaving. (N.T. 412.) On
cross-examination, he added that after leaving the
restaurant, and prior to driving up the road[, ] he went
across the road to the Wilson Dodge auto dealership. (N.T.
525) He testified that upon his return from driving up the
road, he watched Johnson leave and traveled the same
direction and ultimately followed Johnson to the scene of the
murder. (N.T. 412-15) He later testified that this trip takes
ten to twelve minutes. (N.T. 551) Petitioner testified that
at the scene of the murder he got out of the car and verbally
confronted Johnson arguing with him. He testified that he
then got back in the car and got the vase of flowers again
confronting Mr. Johnson. (N.T. 416) He next threw the vase of
flowers at Johnson, striking him in the forehead with them.
(N.T. 417) Petitioner testified that he continued to verbally
confront Mr. Johnson and then returned to the car a second
time and obtained a rifle from the back seat area. (N.T. 420)
He testified that he wanted to scare Johnson and approached
him with [the] rifle. (N.T. 422) Apparently unsatisfied with
the effect of the rifle itself, he testified that he returned
to the car a third time and obtained a number of rifle
cartridges which he loaded into the rifle as he again
approached Johnson. (N.T. 424) According to his testimony,
[P]etitioner continued approaching Johnson then lunged and
kicked at him and the rifle. (N.T. 426) Petitioner indicated
that he was unaware of the gun going off the first time, and
the second shot was fired during a struggle for the gun. He
testified that at the time the third shot was fired, Mr.
Johnson was lying on the ground, on his knees and
unresponsive. (N.T. 595) The actions at the scene of the
murder took approximately fifteen minutes according to
Petitioner's testimony. (N.T. 551-52)
(Doc. 13, pp. 5-6.)
on the foregoing, Witucki has not made a credible showing of