Opinion
DA 23-0021
10-03-2023
GREGG ALLEN ZINDELL, Petitioner, v. STATE OF MONTANA, Respondent.
ORDER
Gregg Allen Zindell, a self-represented litigant, has filed a petition for a rehearing of our August 19, 2023 decision affirming the District Court's dismissal of his second postconviction relief (PCR) petition as time-barred. The State of Montana has filed a response opposing the petition.
This Court will only consider a petition for rehearing if one of the following reasons were presented: "[t]hat it overlooked some fact material to the decision; [][t]hat it overlooked some question presented by counsel that would have proven decisive to the case; or [] [t]hat its decision conflicts with a statute or controlling decision not addressed by the supreme court." M. R. App. P. 20(1)(a)(i)-(iii).
Zindell argues his PCR petition was not time-barred because his time should be considered tolled during his first PCR appeal, citing 28 U.S.C 2244(d)(2). He additionally argues the Court needed to consider all the evidence, even inadmissible evidence to determine whether no reasonable juror would have convicted him. Lastly, he asserts he mailed his second PCR petition to the Attorney General and the county attorney in 2017.
The State responds Zindell's second PCR petition is time-barred under § 46-21-102(1) and Zindell's cite to § 28 U.S.C. 2244(d) is misplaced because the rule only applies to federal habeas corpus petitions. The State further argues Zindell is not entitled to have his case reviewed de novo because there was no newly discovered evidence that would warrant such review.
Zindell has not met his burden under M. R. App. P. 20(1)(a) of showing a rehearing should be granted. The authorities cited to are nonbinding or irrelevant to the issues. The only fact Zindell contests is when the Attorney General received his petition, which regardless of whether it was received in 2017 or 2019, it would still be time-barred as discussed in Zindell v. State, 2023 MT 166N. Therefore, IT IS ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Gregg Allen Zindell personally.