United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL, DISMISSING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Dennis Fyke (“Petitioner”)
pleaded no contest to attempted murder in the Gladwin County
Circuit Court and was sentenced to 15 to 30 years
imprisonment in 2011. In his pro se pleadings, Petitioner
raises claims concerning the effectiveness of trial and
appellate counsel, the validity of his sentence, his right to
DNA testing, the amendment of the charges against him, and
his actual innocence.
matter is currently before the Court on Respondent's
motion for dismissal of the petition for failure to comply
with the one-year statute of limitations applicable to
federal habeas actions. Petitioner has filed a reply to the
motion asserting that the one-year period should be equitably
tolled. Having reviewed the matter, the Court concludes that
the habeas petition is untimely and must be dismissed. The
Court also concludes that a certificate of appealability and
leave to proceed in forma pauperis on appeal must be denied.
attempted murder conviction stems from an incident in which a
woman resisted his advances and he sexually assaulted her and
struck her in the head with a hammer causing a permanent
closed head injury. Sent. Tr., p. 7. Petitioner tendered his
plea on August 1, 2011 and was sentenced on September 6,
2011. On March 5, 2012, he filed a motion to withdraw his
plea with the state trial court, which was denied on May 15,
2012. Petitioner did not appeal that decision or otherwise
pursue a direct appeal of his convictions and sentences in
the state courts. See Register of Actions,
People v. Fyke, Gladwin Co. Cir. Ct. No.
7, 2013, Petitioner filed a motion for relief from judgment
with the state trial court, which was denied on September 15,
2014. Id. He then filed a delayed application for
leave to appeal with the Michigan Court of Appeals, which was
denied. People v. Fyke, No. 324657 (Mich. Ct. App.
March 12, 2015). He also filed an application for leave to
appeal with the Michigan Supreme Court, which was denied.
People v. Fyke, 499 Mich. 868, 874 N.W.2d 697 (March
dated his federal habeas petition on August 24, 2016.
Respondent thereafter filed the instant motion for dismissal
asserting that the petition is untimely. Petitioner has
recently filed a reply asserting that he should be allowed to
proceed on his claims based upon equitable tolling.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., became effective on April 24, 1996. The
AEDPA includes a one-year period of limitations for habeas
petitions brought by prisoners challenging state court
judgments. The statute provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made