Palmer v. McQuiggin

Filing 11

OPINION and ORDER GRANTING re 9 MOTION for Summary Judgment ,DENYING 1 Petition for Writ of Habeas Corpus, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY & GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH PALMER,
Petitioner,
Case No. 10-14391
v.
Honorable Patrick J. Duggan
GREG McQUIGGIN,
Respondent.
/
OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR
SUMMARY JUDGMENT, DECLINING TO ISSUE A CERTIFICATE
OFAPPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
Joseph Palmer (“Petitioner”), a state prisoner currently confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, has filed a pro se application for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for
assault with intent to commit murder, Michigan Compiled Laws § 750.83, felon in
possession of a firearm, Michigan Compiled Laws § 750.224f, and possession of a
firearm during the commission of, or attempt to commit, a felony, Michigan Compiled
Laws § 750.227b. The State has filed a motion for summary judgment, arguing that the
petition is barred by the statute of limitations. The Court agrees, and accordingly grants
the State’s motion.
I. Factual and Procedural Background
Petitioner was tried with a co-defendant, Myron Jackson, in connection with a

shooting that occurred during March 2005. The Court recites the facts set forth by the
Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1).
This case arises from an acquaintance shooting, from defendants’ vehicle to
another, in which the victim, Aaron Bartlett, was shot four times in the head
when his car was stopped at an intersection in Detroit. Bartlett testified that he
had previously been a friend of defendants for about five years. In 2004,
Bartlett and defendant Palmer purchased a car together, and thereafter had
several disagreements concerning possession and use of the vehicle. During
one disagreement, a physical fight erupted between Bartlett and defendant
Palmer, and a separate fight erupted between Bartlett’s cousin Marco and
defendant Jackson. After the fight, Bartlett took the car and left. Bartlett had
no communication with defendants after this incident. He had not seen
defendant Jackson; he had seen defendant Palmer, but did not speak with him.
On March 1, 2005, at about 8:30 p.m., Bartlett and Rolland Roach stopped
at a party store on Oakland and Clay streets in Detroit. Bartlett and Roach
testified that defendant Jackson was also at the store, and Bartlett briefly
conversed with him. Roach testified that defendant Jackson asked about
Marco. As Bartlett was conversing with defendant Jackson, defendant Palmer
got out of the passenger side of a brown or gold minivan and walked toward
Bartlett’s car. Bartlett and Roach testified that Bartlett asked defendant Palmer
if they were going to fight. Defendant Palmer allegedly denied wanting to
fight, and said, “I got it.” “I’ll handle it.” Defendants walked back to the
minivan, with defendant Jackson getting into the driver’s side. Bartlett and
Roach left.
At about 10:00 p.m., Bartlett was driving around the area of Oakland and
Clay with four friends. Bartlett’s girlfriend, Shanara King, was asleep in the
front seat, Roach was seated in the rear passenger side, “Brandon” was seated
in the rear driver’s side, and Devon Lockridge was seated in between Roach
and Brandon. Bartlett testified that when he stopped in the left turn lane at a
traffic light, the same minivan that he saw defendants in earlier stopped
alongside the driver’s side of his car. Bartlett and Roach identified defendant
Jackson as the driver of the minivan. Roach testified that the minivan was so
close to Bartlett’s car that Bartlett would not have been able to open his door.
Bartlett and Roach testified that defendant Palmer, who was in the front
passenger seat, extended his arm out of the window, and fired a gun. Roach
stated that defendant Palmer fired about six gunshots. The first shot broke
Bartlett’s driver’s side window. Bartlett was shot four times in the head, and
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once in the shoulder.
People v. Palmer, No. 265289, 2007 Mich. App. LEXIS 815, at *1-4 (Mich. Ct. App.
Mar. 22, 2007).
After a jury trial in Wayne County Circuit Court, Petitioner was found guilty of the
above-listed offenses. On September 9, 2005, Petitioner was sentenced to two years in
prison for felony-firearm, followed by concurrent terms of twenty-three to sixty years for
assault with intent to commit murder and two to five years for the felon-in-possession
conviction.
Petitioner filed an appeal as of right, arguing that: (1) the prosecution failed to
produce two endorsed witnesses; (2) the trial court should have instructed the jury on a
lesser-included offense; (3) trial counsel was ineffective; (4) the prosecutor should not
have been permitted to introduce evidence of a prior conviction; (5) the opinions of
prospective jurors regarding the presumption of innocence tainted the entire jury pool;
and (6) the prosecutor impermissibly shifted the burden of proof to Petitioner by requiring
him to provide an explanation for missing witnesses. The Michigan Court of Appeals
rejected these claims and affirmed Petitioner’s convictions in an unpublished per curiam
opinion. Palmer, No. 265289 (Mich. Ct. App. Mar. 22, 2007).
Petitioner filed a pro se application for leave to appeal with the Michigan Supreme
Court, but his application was denied in an order dated July 30, 2007. People v. Palmer,
479 Mich. 864, 735 N.W.2d 245 (Mich. 2007). Petitioner did not seek a writ of certiorari
in the United States Supreme Court.
Petitioner mailed a motion for relief from judgment to the trial court on April 10,
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2008, requesting either a new trial or re-sentencing. On September 8, 2008, the trial court
denied the motion on the basis that Petitioner had raised his new trial claims in the Court
of Appeals and had not shown “good cause” under Michigan Court Rule 6.508(D)(3) for
failure to raise his sentencing claims on appeal. The trial court also found no merit in
Petitioner’s claims regarding appellate counsel and the scoring of sentencing guidelines.
On September 21, 2009, Petitioner mailed a delayed application for leave to appeal
to the Michigan Court of Appeals. The court dismissed his application because it was not
filed within one year of the trial court’s decision, as required by Michigan Court Rule
7.205(F)(3).1 People v. Palmer, No. 294275 (Mich. Ct. App. Nov. 18, 2009). Petitioner
subsequently filed an application for leave to appeal in the Michigan Supreme Court. The
Michigan Supreme Court denied this application in an order dated July 26, 2010. People
v. Palmer, 487 Mich. 851, 784 N.W.2d 209 (Mich. 2010).
Petitioner asserts that he mailed his habeas petition to this Court on October 27,
2010. The petition raises the following claims: (1) that Petitioner was denied his rights to
a fair trial, to confront the witnesses against him, and to due process of law by the
prosecution’s failure to produce two witnesses at trial and the trial court’s failure to
determine whether the prosecution exercised due diligence in failing to produce the
witnesses; (2) that Petitioner was denied his right to a fair trial by the trial court’s refusal
to instruct the jury on the lesser offense of assault with intent to commit great bodily harm
less than murder; (3) that the sentencing guidelines were scored incorrectly and enhanced

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This Rule recently was amended to require prisoners to file a delayed application for
leave to appeal within six months of the date of the judgment or order being appealed.
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on the basis of facts that were neither admitted nor proved to a jury; and (4) that the
pretrial identification procedure was suggestive, unreliable, and improper. The State has
moved for summary judgment and dismissal of the petition, arguing that these claims are
barred by the one-year statute of limitations.
II. Discussion
A. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established
a one-year period of limitation for state prisoners to file federal habeas corpus petitions.
28 U.S.C. § 2244(d)(1). The period runs from the latest of four specified dates:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
Id. The limitation period is tolled, however, “during the pendency of a ‘properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim.’” Wall v. Kholi, --- U.S. ----, 131 S. Ct. 1278, 1283 (2011)
(quoting 28 U.S.C. § 2244(d)(2)).
The statute of limitations began to run in this case when Petitioner’s conviction
“became final by the conclusion of direct review or the expiration of the time for seeking
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such review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review,” for purposes of subsection
2244(d)(1)(A), concludes when the availability of direct appeal to the state courts and to
the United States Supreme Court has been exhausted. Jimenez v. Quarterman, 555 U.S.
113, 119, 129 S. Ct. 681, 685 (2009). A petition for writ of certiorari to review a
judgment entered by a state court of last resort must be filed within ninety days after entry
of the judgment. Sup. Ct. R. 13.1. Petitioner appealed his convictions to the Michigan
Supreme Court, but did not apply for a writ of certiorari in the United States Supreme
Court. Thus, his conviction became final on October 28, 2007, ninety days after the
Michigan Supreme Court denied leave to appeal on direct review. See Jimenez, 555 U. S.
at 120, 129 S. Ct. at 686; Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
The one-year limitation period began running on October 29, 2007, and it continued
to run until April 10, 2008, when Petitioner mailed his motion for relief from judgment to
the trial court. The limitation period was tolled from April 10, 2008, through September
8, 2008, the date on which the trial court denied Petitioner’s motion. See § 2244(d)(2).
The limitation period is generally tolled while a post-conviction motion and subsequent
appeals are pending in state court, Carey v. Saffold, 536 U.S. 214, 219-20, 122 S. Ct.
2134, 2138 (2002), but an application for state post-conviction review must be “properly
filed” for it to toll the limitation period. § 2244(d)(2). “[A]n application is ‘properly
filed’ when its delivery and acceptance are in compliance with the applicable laws and
rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364 (2000).
These rules usually prescribe, among other things, the time limits for delivery. Id. at 8,
121 S. Ct. at 364. “[O]nly a timely appeal tolls AEDPA’s 1-year limitations period for the
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time between the lower court’s adverse decision and the filing of a notice of appeal in the
higher court.” Evans v. Chavis, 546 U.S. 189, 197, 126 S. Ct. 846, 852 (2006) (emphasis
in original). Petitioner’s application for leave to appeal to the Michigan Court of Appeals
on collateral review was dismissed as untimely. Thus, the limitation period was not tolled
after the trial court’s denial of Petitioner’s motion for relief from judgment on September
8, 2008. The limitation period resumed running the next day, September 9, 2008. At the
time, 164 days had run on the period of limitation and 201 days remained. The limitation
period expired on March 28, 2009, but Petitioner filed his habeas petition more than a
year and a half later, on October 27, 2010.2 His habeas petition is therefore untimely
unless equitable tolling is appropriate.
B. Equitable Tolling
The habeas statute of limitations “is subject to equitable tolling in appropriate
cases.” Holland v. Florida, --- U.S. ----, 130 S. Ct. 2549, 2560 (2010). The petitioner
must show “‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005)). The decision
must be made on a case-by-case basis, taking into account specific circumstances that

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Pursuant to the “prison mailbox rule,” the Court deems the petition filed on the date that
Petitioner submitted his pleading to prison officials for forwarding to the Court. Houston
v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988); Brand v. Motley, 526 F.3d 921,
925 (6th Cir. 2008). Petitioner alleges in a certificate of service that he mailed his
petition for writ of habeas corpus to this Court on October 27, 2010. The Court therefore
deems the petition filed on October 27, 2010, even though the Clerk of the Court received
it and filed it on November 2, 2010.
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might warrant relief. Id.
Even if the Court were to assume that Petitioner pursued his claims diligently, he
has not shown that some extraordinary circumstance prevented him from filing a timely
habeas petition. Petitioner appears to allege that state officials interfered with his ability
to file a timely appeal with the Michigan Court of Appeals on collateral review by not
making copies for him in a timely manner. He claims that he requested the copies on
August 22, 2009, and the record indicates that he mailed his application to the Michigan
Court of Appeals on September 21, 2009. The trial court, however, denied Petitioner’s
post-conviction motion almost a year before Petitioner asked state officials to make
copies for him to include with his appellate application. Petitioner could have prepared
his appellate materials sooner with the expectation that there might be a delay in making
copies and mailing his application for leave to appeal. See Alexander v. Schriro, 312 F.
App’x 972, 975 (9th Cir. 2009) (short delay in access to a copy machine did not warrant
equitable tolling of the limitations period, where habeas petitioner had a year to prepare
and file his petition). Furthermore, the alleged failure to provide copies occurred during
state collateral proceedings. Petitioner has not alleged any circumstance that prevented
him from filing a timely habeas corpus petition in federal court. He could have filed his
habeas petition and moved to stay the petition while he pursued state court remedies.
Although the statute of limitations can be equitably tolled for a credible claim of
actual innocence, Souter v. Jones, 395 F.3d 577, 601 (6th Cir. 2005), a petitioner must
support his claim of innocence with “new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that
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was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865
(1995). The petitioner must show that “in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at 329,
115 S. Ct. at 868. Petitioner has not supported his habeas petition with new evidence.
Nor has he made a credible showing of actual innocence. The Court finds no grounds
justifying equitable tolling of the limitation period.
III. Conclusion
Petitioner filed his habeas petition more than one year after his convictions became
final, and he has failed to establish grounds for equitable tolling of the limitations period.
The Court therefore concludes that the petition must be dismissed as untimely.
“The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases. A
certificate of appealability may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003). Reasonable jurists would not
debate the correctness of the Court’s procedural ruling. The Court therefore declines to
issue Petitioner a certificate of appealability.
Accordingly,
IT IS ORDERED that the State’s motion for summary judgment and dismissal of
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the habeas petition is GRANTED;
IT IS FURTHER ORDERED that the Court DECLINES to issue a certificate of
appealability;
IT IS FURTHER ORDERED that Petitioner may proceed in forma pauperis on
appeal without further authorization because he was permitted to proceed in forma
pauperis in the district court. See Fed. R. App. P. 24(a)(3).

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Dated: February 28, 2012
Copies to:
Joseph Palmer, #392289
Chippewa Correctional Facility
4269 W. M-80
Kincheloe, MI 49784
Andrea M. Christensen, A.A.G.

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