Palmateer v. Palmer

Filing 12

OPINION AND ORDER GRANTING 10 MOTION to Dismiss Petition for Writ of Habeas Corpus filed by Carmen Palmer, DISMISSING the 1 Petition for Writ of Habeas Corpus filed by Kyle Palmateer, and DECLINING to Issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
KYLE PALMATEER,
Petitioner,
v.

Case No. 16-13567

CARMEN PALMER,
Respondent.
_____________________________/
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION FOR DISMISSAL [Dkt. #10],
DISMISSING THE HABEAS PETITION [Dkt. #1], AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This matter is before the court on Petitioner Kyle Palmateer’s pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254 and Respondent Carmen Palmer’s
motion for dismissal of the petition. The habeas petition challenges Petitioner’s
convictions for assault with intent to rob while armed, Mich. Comp. Laws § 750.89, and
possession of a firearm during the commission of a felony (felony firearm), Mich. Comp.
Laws § 750.227b. Respondent urges the court to dismiss the petition on the basis that
Petitioner did not file his petition within the applicable statute of limitations. The court
agrees that the petition is time-barred. Accordingly, Respondent’s motion will be
granted, and the petition will be dismissed.
I. BACKGROUND
Petitioner was charged in Genesee County, Michigan with several crimes that
arose from an assault on James Molisani. Petitioner, through counsel, provided the
following brief summary of the facts during post-conviction proceedings:

Complainant James Molisani was assaulted by four assailants on Friday,
August 31, 2007. A Flint police officer, while on routine patrol, found Mr.
Molisani lying in the middle of Lapeer Road. He saw a white male and a
black male running from the scene. After attending to Mr. Molisani, who
was unable to describe his assailants, the officer chased and arrested
Terrell Carpenter. Carpenter thereafter told the police that he, Kyle
Palmateer and Kory Gross had assaulted Mr. Molisani.
Kyle Palmateer was arrested and charged on September 30, 2007 with
committing: robbery armed, assault with intent to rob while armed,
conspiracy to robbery-armed, assault with intent to murder, assault with
intent to do great bodily harm less than murder and felony firearm. At the
preliminary examination, Complainant Molisani identified defendant
Palmateer as one of the individuals who had assaulted him on August 31,
2007.
Brief Supporting Relief from Judgment-Motion, pp. 3-4 (Dkt. #10-2, Page ID 155-56)
(citations to the record omitted).1
On April 17, 2008, Petitioner pleaded no contest in Genesee County Circuit Court
to assault with intent to rob while armed and felony firearm. In return, the prosecutor
dismissed the other charges. On May 13, 2008, the trial court sentenced Petitioner to
prison for twelve to twenty years for the assault conviction and two years for the felonyfirearm conviction. Petitioner did not pursue a direct appeal from his convictions and
sentence.
On March 23, 2009, Mr. Molisani signed an affidavit in which he stated that
Petitioner was not one of the individuals who assaulted him on August 31, 2007, and
that his identification of Petitioner at the preliminary examination was erroneous. See
Pet. for Writ of Habeas Corpus, Ex. C (Dkt. #1, Page ID 63-65).

1

The trial court's docket indicates that Petitioner was charged with only five counts:
armed robbery, assault with intent to rob while armed, conspiracy to commit armed
robbery, assault with intent to do great bodily harm less than murder, and felony firearm.
See Genesee Cty. Register of Actions (Dkt. #10-3, Page ID 164).
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On October 20, 2009, Petitioner filed a motion for relief from judgment in the
state trial court. His ground for relief was that he pleaded no contest because he
thought there was no way he could win at trial. He also pointed out that the complainant
had signed an affidavit swearing that Petitioner was not one of the people who had
assaulted him.
The trial court denied Petitioner's motion on the basis that Petitioner's claim of
innocence was absurd and that Petitioner's newly discovered evidence had no support
in the record before the court. In reaching these conclusions, the court stated that
Petitioner
must have now simply forgotten that Molisani, a man over twice his age,
was set upon by plan, [was] beaten within an inch of his life, . . . was in a
coma for months, and generally identified his assailants. Defendant must
have now forgotten that one of his own co-defendants testified against him
at [the] preliminary examination, in innocence-crushing detail, about a plan
to rob someone, the measures taken, and the actual assault and robbery.
Defendant's pathetic attempt to say he was afraid to go to trial (darn right;
he should have been afraid to go to trial) because of counsel's inaction is
[a] transparent [and] pathetic attempt to shift the blame for his wrongdoing.
People v. Palmateer, No. 07-21903-FC, Op. and Order Denying Mot. for Relief from J.
(Genesee Cty. Cir. Ct. June 7, 2010).
Petitioner appealed the trial court's decision, but the Michigan Court of Appeals
denied leave to appeal. On December 28, 2011, the Michigan Supreme Court also
denied leave to appeal, stating that Petitioner had failed to establish entitlement to relief
under Michigan Court Rule 6.508(D). See People v. Palmateer, 806 N.W.2d 527 (Mich.
2011).

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On February 14, 2013, Terell2 Carpenter signed an affidavit in which he stated
that the identification he gave of Petitioner was erroneous and that Petitioner was not
one of the individuals who assaulted Mr. Molisani with him on August 31, 2007.
Carpenter also averred that the statement he gave to the officer on August 31, 2007
was untrue. See Pet. for Writ of Habeas Corpus, Ex. D (Dkt. #1, Page ID 66-67).
On January 29, 2014, Petitioner filed a second motion for relief from judgment in
which he argued that he was entitled to an evidentiary hearing due to Carpenter’s
recanting affidavit. The trial court denied Petitioner's motion on the basis that
Carpenter’s affidavit was suspect and, therefore, Petitioner was not entitled to the relief
he sought. See id., Ex. B (Dkt. #1, Page ID 60-62).
The Michigan Court of Appeals denied Petitioner’s subsequent application for
leave to appeal. The Court of Appeals stated that Michigan Court Rule 6.502(G)(1)
"prohibits a defendant from appealing the denial of a successive motion for relief from
judgment” and that Petitioner's "claim of newly discovered evidence [was] unavailing."
See People v. Palmateer, No. 323480 (Mich. Ct. App. November 21, 2014). On
September 29, 2015, the Michigan Supreme Court denied leave to appeal under
Michigan Court Rule 6.508(D). See People v. Palmateer, 869 N.W.2d 569 (Mich.
2015).
On September 8, 2016, Petitioner signed his habeas petition. The petition is
post-marked September 29, 2016, and the Clerk of the Court filed the petition on
October 3, 2016. Petitioner alleges as grounds for relief that: (1) he is entitled to
withdraw his plea on the basis of newly discovered evidence; (2) his trial attorney was
2

Although Mr. Carpenter’s first name was spelled “Terrell” in Petitioner's motion for
relief from judgment, he spells it “Terell” in his affidavit.
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ineffective for failing to (a) investigate the complainant and co-defendant, (b) give
reasonable advice regarding the plea offer, and (c) move to suppress the complainant’s
identification; (3) appellate counsel was ineffective for failing to raise the foregoing
claims on direct appeal or in petitioner's first motion for relief from judgment; (4) he was
denied his right to a fair and impartial decision-maker; and (5) the trial court abused its
discretion when it denied his successive post-conviction motion without assessing
whether the newly-discovered evidence would have made a different result probable if
presented to a jury at trial.
As noted above, Respondent asserts that the petition is untimely. Petitioner
replies that his petition is timely because it was filed within one year of the Michigan
Supreme Court’s decision on September 29, 2015. Petitioner also contends that he is
entitled to have his claims heard on the merits because he is actually innocent of the
crimes for which he is incarcerated.
II. ANALYSIS
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established
a one-year period of limitations for state prisoners to file their federal habeas corpus
petitions. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1));
Holbrook v. Curtin, 833 F.3d 612, 615 (6th Cir. 2016) (citing 28 U.S.C. § 2244(d)(1)),
cert. denied sub nom. Woods v. Holbrook, 137 S. Ct. 1436 (2017). The limitations
period runs from the latest of the following four 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;

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(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.
28 U.S.C. § 2244(d)(1)(A)-(D). "AEDPA also contains a tolling provision, which
specifies that '[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this subsection.' "
Holbrook, 833 F.3d at 615 (quoting 28 U.S.C. § 2244(d)(2)).
B. Application
1. 28 U.S.C. § 2244(d)(1)(A)
"AEDPA generally requires a federal habeas petition to be filed within one year of
the date on which the judgment became final by the conclusion of direct review." Kholi,
562 U.S. at 549 (citing 28 U.S.C. § 2244(d)(1)(A)). "Direct review" concludes, for
purposes of § 2244(d)(1)(A), 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 (2009).
For petitioners who pursue direct review all the way to [the Supreme]
Court, the judgment becomes final at the "conclusion of direct review"—
when [the Supreme] Court affirms a conviction on the merits or denies a
petition for certiorari. For all other petitioners, the judgment becomes final
at the "expiration of the time for seeking such review"—when the time for
pursuing direct review in [the Supreme] Court, or in state court, expires.

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Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Petitioner was sentenced on May 13, 2008, and at the time, the deadline for filing
a delayed appeal from a conviction was one year after entry of the judgment. See Mich.
Ct. 7.205(G)(3) and the Staff Comment to the June 2011 Amendment.3 Because
Petitioner did not pursue a direct appeal, his convictions became final on May 13, 2009,
when the one-year deadline for pursuing a direct appeal expired. Gonzalez, 565 U.S. at
150. The statute of limitations began to run on the following day, Miller v. Collins, 305
F.3d 491, 495 n.4 (6th Cir. 2002), and it ran uninterrupted for 159 days until October 20,
2009, when Petitioner filed his first motion for relief from judgment.
The filing of the post-conviction motion tolled the limitations period for the entire
time that the motion was under consideration in state court. 28 U.S.C. § 2244(d)(2);
Carey v. Saffold, 536 U.S. 214, 219–20 (2002). On December 28, 2011, the state
courts concluded their review of Petitioner’s motion, and on December 29, 2011, the
limitations period resumed running. At that point, Petitioner had 206 days, that is, until
July 21, 2012, to file his habeas petition.4
Petitioner did not file his habeas petition until September of 2016, more than four
years after the limitations period expired. Although he did file a second motion for relief
from judgment during the interim, the motion did not revive or restart the limitations
period. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v.

3

The current deadline for filing a late appeal in the Michigan Court of Appeals is six
months from entry of a final judgment or order, Mich. Ct. R. 7.205(G)(3), but in 2008, the
deadline was twelve months. See the Staff Comment to the June 2011 Amendment of
the rule (stating that “[t]he [2011] amendment of MCR 7.205 reduces the late appeal
period from 12 months to 6 months”).
4

February 2012 had 29 days because it was a leap year.
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Khulmann, 991 F. Supp. 254, 259 (S.D. N.Y. 1998)). The tolling provision of §
2244(d)(2) “can only serve to pause a clock that has not yet fully run. Once the
limitations period is expired, collateral petitions can no longer serve to avoid a statute of
limitations.” Rashid, 991 F. Supp. at 259. Thus, the petition is untimely under §
2244(d)(1)(A).
2. Delayed Starts under 28 U.S.C. §§ 2244 (D)(1)(B)-(D)
As noted above, the limitations period can run from a date other than the date on
which the petitioner's convictions became final. But Petitioner has not alleged that
some state action prevented him from filing a timely habeas petition, and he is not
relying on a newly recognized constitutional right. Cf. 28 U.S.C. § 2244(d)(1)(B) and
(C).
Petitioner does purport to have newly discovered evidence, and the statute of
limitations can run from the date on which the factual predicate for the petitioner’s
claims "could have been discovered through the exercise of due diligence." 28 U.S.C. §
2244(d)(1)(D). The question under § 2244(d)(1)(D)
is not when prisoners first learned of the new evidence; it is when they
should have learned of the new evidence had they exercised reasonable
care. Habeas claimants invoking this provision shoulder the burden of
proving that they exercised due diligence.
Townsend v. Lafler, 99 F. App’x 606, 608 (6th Cir. 2004) (internal citation omitted).
The new evidence in this case consists of Mr. Molisani's affidavit, which was
signed on March 23, 2009, and Terell Carpenter's affidavit, which was signed almost
four years later on February 14, 2013. Petitioner acquired Mr. Molisani's affidavit before
his convictions became final, and even if the limitations period did not begin to run until
February 14, 2013, when Carpenter signed his affidavit, the petition is untimely.
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Petitioner waited eleven and a half months – until January 29, 2014 – to raise the issue
of Carpenter's recantation in the state trial court. The state courts subsequently
concluded their review of Petitioner's post-conviction motion on September 29, 2015.
Petitioner then waited another eleven and a half months – until September 8, 2016 –
before he filed his habeas petition.
Under § 2244(d)(1)(D), the limitations period ran a total of twenty-three months:
eleven and a half months after Petitioner could have exercised due diligence and
discovered Carpenter's recantation and another eleven and a months after the state
courts concluded their review of Petitioner's motion about Carpenter's affidavit.
Because the limitations period ran more than a year, the habeas petition is untimely
even under a generous reading of the law.
C. Equitable Tolling
The Supreme Court has held that the habeas statute of limitations "is subject to
equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010).
But "a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
Petitioner was not diligent in pursuing his rights, and even though he claims that
he lacked knowledge of the law, effective assistance of counsel, and court documents
at some point during the state-court proceedings, these circumstances do not qualify as
"extraordinary circumstances." See Jones v. United States, 689 F.3d 621, 627 (6th Cir.
2012) (stating that, "[g]enerally, to qualify as 'extraordinary circumstances,' the petitioner

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must show more than just his status as pro se or his limited access to a law library");
Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012) (noting that
the prisoner’s "pro se status and lack of knowledge of the law [were] not sufficient to
constitute an extraordinary circumstance and to excuse his late filing"); Hall v. Warden,
Lebanon Corr. Inst., 662 F.3d 745, 750-51 (6th Cir. 2011) (stating that, "[s]tanding
alone, . . . the unavailability of or delay in receiving transcripts is not enough to entitle a
habeas petitioner to equitable tolling"). The court, therefore, concludes that no
extraordinary circumstance prevented Petitioner from pursuing his claims in a timely
manner and that he is not entitled to equitable tolling of the limitations period.
D. Actual Innocence
Actual innocence, if proved, serves as a gateway through which habeas
petitioners may pass when the impediment to consideration of the merits of their
constitutional claims is expiration of the statute of limitations. McQuiggin v. Perkins, 569
U.S. 383, 386 (2013). But the Supreme Court has cautioned
that tenable actual-innocence gateway pleas are rare: "[A] petitioner does
not meet the threshold requirement unless he persuades the district court
that, in light of . . . new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt."
Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To be credible, a claim of actual
innocence requires the petitioner "to support his allegations of constitutional error with
new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial."
Schlup, 513 U.S. at 324. The actual-innocence exception should “remain rare” and be
applied in only “the extraordinary case.” Souter v. Jones, 395 F.3d 577, 590 (6th Cir.
2005) (citing Schlup, 513 U.S. at 321).
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Petitioner's assertions of actual innocence are based on the affidavits of Mr.
Molisani and Terell Carpenter, but neither witness's affidavit is new reliable evidence of
actual innocence. After Mr. Molisani signed his affidavit, he "supplied a witnessed letter
indicating [that] he was prompted, cajoled and bribed into signing the affidavit." People
v. Palmateer, No. 07-21903-FC (Genesee Cty. Cir. Ct. June 7, 2010) (DKt. #1, Page ID
74).
As for Carpenter, he testified at Petitioner's preliminary examination "in defenseasphyxiating detail just who did the assaulting and robbing," id., and he signed his
recanting affidavit years later. Affidavits collected long after a conviction to prove a
petitioner’s innocence must “be treated with a fair degree of skepticism,” Herrera v.
Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring), and even "extreme
suspicion." Williams v. Coyle, 260 F.3d 684, 708 (6th Cir. 2001) (quoting United States
v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991)).
Furthermore, at most, the recanting affidavits would provide impeachment
evidence. Newly discovered impeachment evidence "is a step removed from evidence
pertaining to the crime itself,” and provides no basis for a finding of actual innocence.
Calderon v. Thompson, 523 U.S. 538, 563 (1998); accord Sawyer v. Whitley, 505 U.S.
333, 349 (1992) (stating that “latter-day evidence brought forward to impeach a
prosecution witness will seldom, if ever, make a clear and convincing showing that no
reasonable juror would have believed the heart of [the witness's] account of [the]
petitioner's actions”); In Re Byrd, 269 F.3d 561, 577 (6th Cir. 2001) (stating that the
petitioner's renewed attacks on a trial witness's credibility did not provide proof of actual
innocence).

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To conclude, Petitioner has not supplied the court with new reliable evidence that
was not presented at trial; this is not the kind of “rare” and “extraordinary” case that
warrants equitable tolling of the statute of limitations. Consequently, Petitioner is not
entitled to pass through the "actual innocence" gateway and have his claims heard on
the merits.
III. CERTIFICATE OF APPEALABILITY
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). To
obtain a certificate of appealability under § 2253(c)(2), a habeas petitioner must “sho[w]
that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
'adequate to deserve encouragement to proceed further.' " Slack v. McDaniel, 529 US.
473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
When, as here, a district court rejects a habeas petition on procedural grounds
without reaching the merits of the petitioner's underlying claims, the petitioner must
show "that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling." Id. at 484. In
this case, the court concludes that reasonable jurists could not disagree with the court's
procedural ruling; nor could reasonable jurists conclude that the issues deserve
encouragement to proceed further.

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IV. CONCLUSION
For the reasons given above, the habeas petition is time-barred, and Petitioner is
not entitled to equitable tolling of the limitations period or substantive review of his
claims pursuant to his assertion of actual innocence. Accordingly,
IT IS ORDERED THAT Respondent's motion for dismissal of the petition (Dkt.
#10) is GRANTED.
IT IS FURTHER ORDERED that the habeas petition (Dkt. #1) is DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 28, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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