United States District Court, E.D. Michigan, Southern Division
GRANTING RESPONDENT'S MOTION FOR DISMISSAL [Dkt.
#10], DISMISSING THE HABEAS PETITION [Dkt. #1], AND DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY
H. CLELAND, UNITED STATES DISTRICT JUDGE
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.
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
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
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.
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).
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.
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
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).
February 14, 2013, Terell 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).
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).
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).
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.
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.