United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) GRANTING RESPONDENT'S
MOTION TODISMISS  (ECF NO. 8), (2) DENYING
CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO
APPEAL IN FORMA PAUPERIS
V. PARKER U.S. DISTRICT JUDGE.
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.
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.
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.)
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.
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.
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.)
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).
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.
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.)
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).
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.)
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 ...