Zentz v. Brewer

          OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION TODISMISS ^[1] (ECF NO. 8), (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Hope Zentz, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her 2007 Oakland Circuit Court no-contest plea convictions to one count of assault with intent to murder, Mich. Comp. Laws § 750.83, one count of unlawfully driving away a motor vehicle, Mich. Comp. Laws § 750.413, and one count of larceny from a building. Mich. Comp. Laws § 750.360. Petitioner is serving a controlling sentence of 225-to-480 months' imprisonment for the assault conviction and lesser concurrent terms for her other convictions.

         The petition raises a single claim: Petitioner was denied procedural and substantive due process at her resentencing hearing when the trial court failed to comply with the terms of the Michigan Court of Appeals' remand order.

         This matter is before the Court on Respondent's motion to dismiss the petition as untimely filed. (ECF No. 8.) Petitioner filed a reply to the motion, admitting that the petition was filed after the expiration of the one-year limitations period but asserting that the delay was due to confusion about her appellate remedies and the calculation of the statute of limitations. (ECF No. 10.)

         The Court grants Respondent's motion to dismiss because Petitioner failed to comply with the one-year limitations period under 28 U.S.C. §2244(d), and she has failed to demonstrate entitlement to equitable tolling. The Court denies a certificate of appealability, but grants permission to proceed on appeal in forma pauperis.

         I. Background

         Petitioner's October 24, 2007 no-contest plea to the above offenses resulted from an incident in which she attempted to strangle an 82-year-old family friend. (ECF No. 9-3, at 3-5.) On November 7, 2007, the trial court sentenced Petitioner as a fourth-time habitual felony offender to concurrent terms of 225-to-480 months' imprisonment for the assault and vehicle larceny convictions and 120-to-180 months' imprisonment for the home larceny conviction.

         On April 30, 2008, Petitioner filed through counsel a delayed application for leave to appeal in the Michigan Court of Appeals, challenging her plea and sentence. On May 29, 2008, the Michigan Court of Appeals vacated Petitioner's sentence, remanded the case to the trial court for resentencing, and denied the application with respect to her other claims. (See ECF No. 9-5, at 1.)

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising challenges to her plea. The Court denied the application on December 19, 2008. People v. Zentz, 758 N.W.2d 302 (Mich. 2008) (Table).

         On June 18, 2008, the trial court resentenced Petitioner to concurrent terms of 225 months to 480 months in prison for assault with intent to murder, 22 months to 15 years in prison for unlawfully driving away a motor vehicle, and 1 year to 15 years in prison for larceny in a building.

         On June 17, 2009, Petitioner filed through counsel an application for leave to appeal in the Michigan Court of Appeals, challenging her new sentence on the ground that the trial court improperly scored the sentencing guidelines. The Michigan Court of Appeals denied Petitioner's application on July 23, 2009. (See ECF No. 9-7, at 1.)

         On September 14, 2009, Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim. The Court denied Petitioner's application on November 23, 2009. People v. Zentz, 774 N.W.2d 864 (Mich. 2009) (Table).

         Over six years later, on November 30, 2015, Petitioner filed a motion for relief from judgment in the trial court, asserting what now forms her habeas claim in addition to a claim of ineffective assistance of counsel. The trial court denied the motion on December 4, 2015. (ECF No. 9-9, at 44.)

         On June 7, 2016, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, challenging the denial of her motion for relief from judgment. On September 7, 2016, the Michigan Court of ...