Zentz v. Brewer
Filing
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OPINION AND ORDER (1) Granting Respondent's 8 Motion to Dismiss, (2) Denying Certificate of Appealability, and (3) Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (MacKay, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HOPE ZENTZ,
Petitioner,
v.
Case No. 18-cv-11550
Hon. Linda V. Parker
SHAWN BREWER,
Respondent.
_____________________________________/
OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION TO
DISMISS1 (ECF NO. 8), (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN
FORMA PAUPERIS
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
Respondent styles his motion as a motion to dismiss, however, it is properly
construed as one of summary judgment because the motion and the record before
the Court includes documents outside of the pleadings. See, e.g., Anderson v.
Shane Place, 2017 U.S. Dist. LEXIS 65670, *6, 2017 WL 1549763 (E.D. Mich.
May 1, 2017); see infra p. 4.
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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’
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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.)
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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 Appeals denied
Petitioner’s application. (ECF No. 9-9, at 1.)
Petitioner again sought review in the Michigan Supreme Court, but the Court
denied leave to appeal on July 25, 2017. People v. Zentz, 898 N.W.2d 599 (Mich.
2017) (Table).
Petitioner dated her present habeas petition May 14, 2018, and it was filed on
May 17, 2018.
II. Standard of Review
Though Respondent styles his motion as a motion to dismiss, it is properly
construed as one of summary judgment because the motion and the record before
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the Court includes documents outside of the pleadings. See, e.g., Anderson v. Shane
Place, 2017 U.S. Dist. LEXIS 65670, *6, 2017 WL 1549763 (E.D. Mich. May 1,
2017).
Summary judgment is proper where there is no genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law. In considering a
motion for summary judgment, the Court will construe all facts in a light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986). There are no genuine issues of material fact when “the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party.” Id. If the movant carries its burden of showing an absence of
evidence to support a claim, then the non-movant must demonstrate by affidavits,
depositions, answers to interrogatories and admissions that a genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). This
standard of review may be applied to habeas proceedings. See Redmond v. Jackson,
295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).
III. Discussion
There is a one-year statute of limitations for petitions filed by state prisoners
seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). The limitations period runs
from one of four specified dates, usually either the day when the judgment becomes
final by the conclusion of direct review or the day when the time for seeking such
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review expires. § 2244(d)(1)(A). The limitations period is tolled while “a properly
filed application for State post-conviction or other collateral review . . . is pending.”
§ 2244(d)(2).
Section 2244(d)(1)(A) provides the operative date from which the one-year
limitations period is measured in this case. Under this section, the one-year
limitations period runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.”
Where a resentencing occurs, a judgment of conviction becomes final upon the
expiration of time for seeking “direct review of the new sentence.” Rashad v. Lafler,
675 F.3d 564, 568 (6th Cir. 2012) (citing Burton v. Stewart, 549 U.S. 147 (2007)).
Here, the expiration of time for seeking direct review of Petitioner’s new sentence
was February 21, 2010—90 days after the Michigan Supreme Court denied
Petitioner’s application for leave to appeal from her resentencing appeal on
November 23, 2009. The limitations period expired one year later, on February 21,
2011. Petitioner signed and dated her habeas petition on May 14, 2018, well after
the one-year limitations period had already expired.
The one-year statute of limitations may be statutorily tolled by a properly filed
motion for post-conviction review. See 28 U.S.C. § 2244(d)(2). Petitioner filed a
post-conviction review proceeding, but she did not do so until 2015, after the statute
of limitations had already expired. A motion for relief from judgment “that is filed
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following the expiration of the limitations period cannot toll [the limitations] period
because there is no period remaining to be tolled.” Smith v. Stegall, 141 F. Supp. 2d
779, 782-83 (E.D. Mich. 2001) (citing Webster v. Moore, 199 F.3d 1256, 1259 (11th
Cir. 2000)). Similarly, when the habeas statute of limitations has already expired,
“the conclusion of state court collateral review” does not reset the limitations clock.
Neal v. Bock, 137 F. Supp. 2d 879, 884 (E.D. Mich. 2001).
Petitioner does not contest these calculations. Instead, she argues that she is
entitled to equitable tolling due to confusion about her appellate remedies following
resentencing and due to uncertainty regarding the application of the statute of
limitations. (ECF No. 10, at 2-3.) A petitioner is entitled to equitable tolling if she
shows: “(1) that [s]he has been pursuing [her] rights diligently, and (2) that some
extraordinary circumstance stood in [her] way and prevented timely filing.” Holland
v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). The party
seeking equitable tolling bears the burden of proving that she is entitled to it.
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
Petitioner asserts that she is entitled to equitable tolling of the one-year
limitations period, in effect, due to her lack of legal knowledge. The fact that
Petitioner is untrained in the law or may have been unaware of the statute of
limitations does not warrant tolling. See Keeling v. Warden, Lebanon Corr. Inst.,
673 F.3d 452, 464 (6th Cir. 2012) (pro se status is not an extraordinary
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circumstance); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (illiteracy is not
a basis for equitable tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich.
2002) (the law is “replete with instances which firmly establish that ignorance of the
law, despite a litigant’s pro se status, is no excuse” for failure to follow legal
requirements); Holloway v. Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001)
(lack of professional legal assistance does not justify tolling). Accordingly,
Petitioner has completely failed to demonstrate entitlement to equitable tolling based
on the fact that she was resentenced or based on her lack of knowledge of the statute
of limitations.
The one-year statute of limitations may also be equitably tolled based upon a
credible showing of actual innocence under the standard enunciated in Schlup v.
Delo, 513 U.S. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). To
prevail under this standard a habeas petitioner must present the Court with new,
reliable evidence not presented at trial to establish that she is actually innocent of the
crime. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). Petitioner has not
attempted to present the Court with new, reliable evidence indicating her actual
innocence.
Accordingly, the Court grants Respondent’s motion for summary judgment
and dismisses the petition because it was filed after expiration of the one-year statute
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of limitations and Petitioner has failed to demonstrate entitlement to equitable
tolling.
IV. Certificate of Appealability
Before Petitioner may appeal, a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the
merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on
procedural grounds without addressing the merits, a certificate of appealability
should issue if it is shown that jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling. Id. Having undertaken the requisite review, the court concludes
that jurists of reason could not debate the Court’s procedural ruling. A certificate of
appealability, therefore, is denied.
Leave to appeal in forma pauperis is granted because an appeal of this order
could be taken in good faith. 18 U.S.C. § 1915(a)(3).
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V. Order
For the foregoing reasons, IT IS ORDERED that Respondent’s motion for
summary judgment is GRANTED, and the petition is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that permission for leave to appeal in forma
pauperis is GRANTED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 14, 2019
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, June 14, 2019, by electronic and/or
U.S. First Class mail.
s/ K. MacKay
Case Manager
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