Petition for Writ of Certiorari — James E. Palmer, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

USCA11 Case: 23-11430

Document: 17-1

Date Filed: 11/14/2023

Page: 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

For rules and forms visit

www.cal 1 .uscourts.gov

David J. Smith

Clerk of Court

November 14, 2023

Clerk - Middle District of Florida

U.S. District Court

801 N FLORIDA AVE

TAMPA, FL 33602-3849

Appeal Number: 23-11430-D

Case Style: James Palmer v. Secretary, Department of Corrections, et al

District Court Docket No: 8:18-cv-00670-WFJ-JSS

The enclosed copy of this Court's order denying the application for a Certificate of

Appealability is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se

parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify

an order must be filed within 21 days of the entry of such order. No additional time shall be

allowed for mailing."

Any pending motions are now rendered moot in light of the attached order.

Clerk's Office Phone Numbers

General Information: 404-335-6100

Case Administration: 404-335-6135

CM/ECF Help Desk: 404-335-6125

404-335-6122

Attorney Admissions:

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Capital Cases:

Cases Set for Oral Argument: 404-335-6141

Enclosure(s)

DIS-4 Multi-purpose dismissal letter

USCA11 Case: 23-11430

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Document: 17-2

Date Filed: 11/14/2023

Order of the Court

Page: 2 of 2

23-11430

ORDER:

James Palmer moves for a certificate of appealability in order

to appeal the denial of his Fed. R. Civ. P. 60 motion for reconsider­

ation of the denial of his 28 U.S.C. § 2254 habeas corpus petition.

He also moves for leave to proceed on appeal in forma pauperis.

Palmer’s motion for a certificate of appealability is DENIED be­

cause he has failed to make a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2). His motion for

leave to proceed on appeal informa pauperis is DENIED AS MOOT.

/s/ Andrew L. Brasher

UNITED STATES CIRCUIT JUDGE

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES E. PALMER,

Petitioner,

Case No. 8:18-cv-670-WFJ-JSS

v.

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

ORDER

Before the Court is James E. Palmer’s Motion to Vacate and Set Aside the

Court’s May 2020 Order and Judgment Denying Palmer’s Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254. Doc. 35. Mr. Palmer brings his present motion

pursuant to Federal Rule of Civil Procedure 60(d)(3) for “fraud on the court.” He

asserts that new evidence shows that the State committed fraud on the state post­

conviction court through its presentation of certain testimony by Mr. Palmer’s trial

counsel at an evidentiary hearing in April 2016. Doc. 35 at 1-2. Because Mr. Palmer

makes allegations of fraud, misconduct, and misleading evidence in his motion, the

Court will liberally construe Mr. Palmer’s motion as seeking relief under Rule 60(d)(3)

tr­

for “fraud on the court” or, alternatively, Rule 60(b)(3) for “fraud . . . ,

misrepresentation, or misconduct by an opposing party [.]” See Fed. R. Civ. P. 60(b)(3),

im).

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ANALYSIS

In 2008, Mr. Palmer was convicted of four counts of sexual battery of a person

less than 12 years of age, one count of lewd molestation, and one count of battery.

Doc. 10-5 at 177-82. He was sentenced to life in prison. Id. at 188-89. In his present

motion, Mr. Palmer takes issue with his trial counsel’s testimony at the post-conviction

court’s 2016 evidentiary hearing on Mr. Palmer’s ineffective assistance of counsel

claim. Doc. 35 at 5-6. Mr. Palmer’s trial counsel testified at the hearing that he decided

not to obtain a medical expert for trial, in part, because the expert would need to

conduct a second examination of the minor victim. Id. Mr. Palmer argues this

testimony was fraudulent or misleading because, over four years later in September

2020, Mr. Palmer retained a medical expert who provided an affidavit stating that a

second medical examination of the minor victim would not have been necessary. Id.

at 9. Mr. Palmer attached this medical expert’s one-page affidavit to his present

motion. Doc. 35-1 at 15.

The Court finds that Mr. Palmer’s motion warrants no relief under Rules

60(b)(3) or 60(d)(3) for several reasons. First, when construed as a Rule 60(b)(3)

motion, the motion must be denied as untimely. Pursuant to Rule 60(c)(1), a Rule

60(b)(3) motion must be brought within one year of the date on which the judgment

was entered. See Smith v: Nat’l Credit Sys., Inc., 760 Fed. App’x 869, 870-71 (11th Cir.

2019) (“A motion under Rule 60(b)(3) must be brought within one year after the entry

of judgment.”). Mr. Palmer filed his motion on November 18, 2022, well beyond one

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year after judgment was entered on May 5, 2020.

Second, even if his Rule 60{bX3)-motion were timely, Rule 60(b) may not be

used to reopen a final habeas judgment unless the motion challenges “not the

substance of the federal court’s resolution of a claim on the merits, but some defect in

the integrity of the federal habeas proceeding.” Gonzalez v. Crosby, 545 U.S. 532, 533

(2005). While “fraud” on the federal habeas court constitutes such a defect, see id. at

532 n.5, Mr. Palmer has not alleged that fraud has-occurred during this Court's habeas

proceedings .-Rather, Mr. Palmer contends that the State committed fraud during the

state post-conviction court’s evidentiary hearing. Thus, like in Gonzalez,1 the alleged

fraud was perpetrated on a state court, not the federal court. As such, Mr. Palmer’s

motion-fails.

Third, in previously denying Mr. Palmer’s ineffective assistance of counsel

ground for relief based on his trial counsel’s failure to obtain a medical expert, this

Court found that Mr. Palmer’s claim was procedurally defaulted and without merit

because Mr. Palmer failed to demonstrate prejudice. See Doc. 21 at 10-12. Even if the

alleged “fraud” affected this Court’s decision on the merits, it had no influence on the

1 In Gonzalez v. Crosby, 545_U.S. 532 (2005), the petitioner alleged that peijured testimony

was given at his sentencing after retrial, which he claims resulted in the jury returning a

death sentence. Gonzalez, 366 F.3d at 1282-84. According to the petitioner, the testimony

destroyed his chances of mitigation because the former prosecutor should have truthfully

testified, he advised the victim’s family that life without parole was not an option. Id. at

1282-84. The Eleventh Circuit held that the alleged fraud was committed, if at all, on the

state court and not the federal court in a habeas proceeding, thereby precluding relief from

the habeas judgment. Id. at 1284-85.

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Court’s determination that the claim was procedurally defaulted. Thus, the alleged

misrepresentation does not impact the denial of the claim. See Olem Shoe Corp. v.

Washington Shoe Corp., 591 F. App’x 873, 886-87 (11th Cir. 2015) (“To successfully

bring a Rule 60(b)(3) motion, the movant must prove by clear and convincing evidence

that an adverse party has obtained the verdict through fraud, misrepresentation, or

other misconduct and must also show that the conduct prevented the losing party from

fully and fairly presenting his case or defense.”).

Fourth and finally, even if construed as a Rule 60(d)(3) motion,2 Mr. Palmer’s

motion still fails because he has not shown true “fraud on the court.” “[0]nly the most

egregious misconduct, such as bribery of a judge or members of a jury, or the

fabrication of evidence by a party in which an attorney is implicated, will constitute a

fraud on the court.” Gupta v. Walt Disney World Co., 482 F. App’x 458, 459 (11th Cir.

2012) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)). The

alleged misrepresentation by trial counsel during the evidentiary hearing that a medical

expert would need to re-examine the minor victim “do[es] not constitute the kind of

clear and convincing evidence of egregious conduct required to establish fraud on the

court.” Id. (citation omitted). The one-page affidavit of a medical expert retained by

Mr. Palmer four years after the evidentiary hearing does not demonstrate otherwise.

r y -^G\^>

Rule 60(d)(3) allows for relief from a final judgment that is more than one year old if the

movant can show ‘fraud on the court.’” Gupta v. Walt Disney World Co., 482 F. App’x 458,

459 (11th Cir. 2012) (quoting Fed. R. Civ. P. 60(d)(3)).

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CONCLUSION

Accordingly, Mr. Palmer’s Motion to Vacate and Set Aside Judgment (Doc. 35)

is DENIED. This Court should grant an application for certificate of appealability

only if the petitioner makes “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Mr. Palmer has failed to make this showing. Thus, a

Certificate of Appealability is DENIED. And because Mr. Palmer is not entitled to a

Certificate of Appealability, he is not entitled to proceed on appeal in forma pauperis.

DONE AND ORDERED at Tampa, Florida, on April 6, 2023.

/s/ William F. Juns__________________

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Petitioner, pro se

Counsel of Record

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