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IN THE COURT OF APPEALS OF IOWA No. 1-736 / 10-1615 Filed November 23, 2011

TIMOTHY PALMER, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink (summary judgment) Robert B. Hanson (trial), Judges.

Timothy Palmer appeals the district court's dismissal of his application for postconviction relief. AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and Joe Weeg, Assistant County Attorney, for appellee State.

Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.

2 EISENHAUER, J. Timothy Palmer appeals the district court's dismissal of his postconviction relief (PCR) application. Palmer requests a new trial based on prosecutorial misconduct for alleged failure to disclose: (1) juvenile records (Orchard

Place/CINA) of accomplice/State's witness Amanda Payne and (2) Payne was promised a parole board letter for her testimony at Palmer's trial. The district court found Palmer's first claim barred by the statute of limitations. Additionally, the district court concluded Palmer failed to prove the existence of a promise. We affirm. I. Background Facts and Proceedings. In December 1994, seventeen-year-old Amanda Payne began dating Palmer. On June 19, 1995, Yuval Kedem's body was found in the "Lost Planet" area of Des Moines. On June 22, 1995, Jamie Strasser offered information

regarding Kedem's death and implicated several people. In July 1995, the State charged Strasser, Palmer, Payne, Akbar Choudry, and Robert Wright with firstdegree murder and first-degree robbery. Both young women, Payne and Strasser, reached plea agreements with the State. Palmer, Choudry, and Wright were tried separately--Palmer in

October 1995, Choudry in November 1995, and Wright in January 1996. Payne's plea and sentencing occurred one week before Palmer's trial, and Payne testified for the State at all three trials. convicted, and Wright was acquitted. Payne was represented by attorneys Rick Olson and Martha Johnson when she entered her October 17, 1995 Alford plea to first-degree robbery and Palmer and Choudry were

3 voluntary manslaughter. During the lengthy plea/sentencing hearing there was no discussion of a letter to be written by prosecutor Steve Foritano to the parole board. Prosecutor Foritano and Payne's attorneys informed the court of the plea agreement: "Miss Payne would essentially go to prison for twenty-five years. Both counts would run concurrently." Thereafter: THE COURT: Miss Payne, under the plea agreement that you have agreed to, if you plead guilty to these two charges, I will be entering an order that sentences you to a prison term of up to twenty-five years on the robbery in the first degree charge, and I will be issuing a prison term on the Class C felony . . . not to exceed ten years. They will both run at the same time. So, in essence . . . you will be imprisoned under the order for a period not to exceed twenty-five years. Understand? .... PAYNE: Yes. THE COURT: And you're willing to plead guilty on that basis, is that correct? PAYNE: Yeah. Yes. .... In essence, under an Alford plea of guilty you would be admitting to me that . . . if you went to trial . . . there would be a substantial likelihood that you would be found guilty of the greater offense, that being murder in the first degree, and you're willing to plead guilty to the lesser charge here, voluntary manslaughter, in order to take advantage of the plea agreement offered by the State. PAYNE: Yes. .... THE COURT: And are you entering a plea of guilty to this voluntary manslaughter, then, in order to avoid the possible consequences of having to go to trial on the murder in the first degree charge? PAYNE: Yes. THE COURT: And also, then, to take advantage of the plea agreement that's been offered here by the State, and that is to allow you to plead guilty to . . . the robbery charge, which is still the same, but the voluntary manslaughter, which has been reduced-- PAYNE: Yes THE COURT: from the murder charge down to the voluntary manslaughter, is that correct? PAYNE: Yes.

4 After Payne entered her guilty plea, she was sentenced. As in the plea portion of the hearing, at no point in the sentencing portion of the hearing was a letter from the prosecutor to the parole board discussed: THE COURT: Miss Payne, do you have anything you would like to say before I impose sentence in your case? PAYNE: The charges that they're concurrent, that means they're together? THE COURT: That's right. PAYNE: So I have to serve twenty-five years? It doesn't get lowered or anything? ATTORNEY JOHNSON: No, it gets lowered. PAYNE: He said they're separate charges, but they're concurrent or whatever. ATTORNEY JOHNSON: Yes. The sentences are concurrent, correct, Your Honor? THE COURT: That is correct . . . . The ten-year term and the twenty-five year term will run at the same time. So, in essence, you will complete the ten-year term and that one will be done. You'll still be serving the twenty-five year term. PAYNE: So how many years do I have to serve mandatory? Isn't there a mandatory thing? ATTORNEY FORTIANO: I don't believe there's a mandatory minimum. Your Honor. But she will be doing up to a maximum of twenty-five years. THE COURT: The actual time that you serve will be determined by the parole board. The order that I enter simply orders that you serve or that you be imprisoned for a period not to exceed twenty-five years . . . . PAYNE: So does that mean I have to do the ten years? ATTORNEY JOHNSON: No, It's up to the parole board. After Payne's plea and sentencing, on October 23, 1995, Palmer's trial commenced. Payne described the crime and also testified: Q. How long have you known Akbar Choudry? A. I met him when I was probably about 12 or 13 and then I hadn't seen him. First time I saw him was this year, about May or June. Q. Where had you met him when you were 12 or 13? A. At Orchard Place. Q. Orchard Place? A. Uh-huh. Q. That is a juvenile residential facility on the south side? A. Right.

5 As Payne's trial testimony continued, a juror stated: "I'm sorry to interrupt, but I just realized there may be a chance that I may know Amanda." In

chambers, the juror explained: Amanda Payne "has mentioned she had been at Orchard Place. I was listening to the testimony and all of a sudden it kind of clicked. I think I may have worked with her when I did an internship in '91." After questioning, the juror admitted she wasn't "sure if it is the same person, but the face looks familiar and the name somewhat." After the juror returned to the jury box, the court stated: If I understand it, the juror was interning at Orchard Place five years ago and thinks that she recognized [Amanda Payne] might have been one of the youths involved there. The juror has indicated it will not have an effect on her ability to continue as a juror in this case. The State informed the court it did not see any reason to remove the juror or pursue it further. Palmer's trial counsel, attorney Feuerhelm, agreed: No. I don't think it's, with the vagueness of her recollection, it might not be [Amanda Payne]. My suspicion is pretty strong that Amanda didn't recognize her either from that. And I think we would unduly emphasize some point if we were to put an alternate in or question further. So I would just like to proceed. The jury convicted Palmer, he appealed, and we affirmed his convictions. State v. Palmer, 569 N.W.2d 614, 617-18 (Iowa Ct. App. 1997) (ruling sufficient independent evidence corroborated Payne's accomplice testimony).1

We also affirmed Choudry's conviction on appeal. See State v. Choudry, 569 N.W.2d 618 (Iowa Ct. App. 1997). We stated: During cross-examination . . . [d]efense counsel attempted to show . . . that because Payne was still in love with Timothy Palmer, she had motive to minimize his involvement and lie about defendant Choudry's part in the murder and robbery of the victim. Payne admitted she was Palmer 's girlfriend at the time of Kedem's death and that she hated Choudry.

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6 Ten years later, in 2007, Palmer filed an application for postconviction relief. Palmer's amended application was filed in January 2008 and included allegations of prosecutorial misconduct. In June 2008, the State moved for

partial summary disposition. In September 2008, the district court dismissed all claims "except those relating to prosecutorial misconduct." After hearing, in September 2009, the district court dismissed Palmer's PCR application. The court ruled Palmer's claim based on the State's alleged failure to disclose Payne's juvenile records was time barred by the statute of limitations. Palmer's second claim alleged failure to disclose a promise of a parole board letter in exchange for testimony at Palmer's trial. In August 2000, five years after Payne's plea, attorney Olson wrote to attorney Foritano on behalf of Palmer, stating: Martha Johnson and I represented Amanda Payne in 1995 on Murder, First Degree, and Robbery, First Degree, charges. Ultimately, the Murder, First Degree, charge was dismissed and she was sentenced to 25 years on the robbery charge. At that time there was an indication by your office that you would author a letter to the parole board on Amanda's behalf because of the cooperation she provided in this case as it concerns her co-defendants. Amanda has yet to have her first parole board hearing, but she would like to have your recommendation on file by that time. .... Any assistance that you could provide would be appreciated. Olson testified there was no response to this letter, so he sent the identical letter one year later. In August 2001, approximately six years after Payne's

Id. at 620. We affirmed the trial court's dismissal of Choudry's application for postconviction relief alleging ineffective assistance of counsel. See Choudry v. State, No. 00-1891 (Iowa Ct. App. Feb. 20, 2002).

7 plea/sentencing, attorney Foritano wrote a letter to the Iowa Board of Parole stating: Ms. Payne's role was to lure Mr. Kedem down to an area of Des Moines known as the Lost Planet, where he was attacked by the three males who were in the group. .... Ms. Payne was not involved in the actual physical attack on Mr. Kedem and I do not believe that she [was] aware of any intention other than to rob Mr. Kedem . . . . Ms. Payne did cooperate with the prosecution of the men that killed Mr. Kedem by testifying against those responsible. In dismissing this claim for relief, the district court ruled: Palmer has not met his burden of establishing the existence of a promise. While the record shows that Attorney Foritano wrote a letter to the parole board on Payne's behalf, the record does not show that this letter resulted from a promise made to Payne as a part of her plea agreement or in exchange for her plea and testimony. Because Palmer has not met his burden, his due process claim must fail. Palmer now appeals. II. Scope of Review. Our review of the district court's "ruling on the State's statute-of-limitation defense is for correction of errors of law." Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). We will affirm the decision if the court's factual findings are supported by substantial evidence and the law was correctly applied. Benton v. State, 199 N.W.2d 56, 57 (Iowa 1972). However, "when the basis for relief is a constitutional violation, our review is de novo." Harrington, 659 N.W.2d at 519. III. Statute of Limitations. Palmer argues the district court erred in ruling the claim based on the State's failure to disclose Payne's juvenile records was time barred. See Iowa Code

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