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Palmateer v. Palmer

United States District Court, E.D. Michigan, Southern Division

March 28, 2018

KYLE PALMATEER, Petitioner,
v.
CARMEN PALMER, Respondent.

          GRANTING RESPONDENT'S MOTION FOR DISMISSAL [Dkt. #10], DISMISSING THE HABEAS PETITION [Dkt. #1], AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

         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 felony-firearm 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).

         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).

         On February 14, 2013, Terell[2] 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 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. ...


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