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Fyke v. Place

United States District Court, E.D. Michigan, Southern Division

October 31, 2017

DENNIS FYKE, #606042, Petitioner,
v.
SHANE PLACE, Respondent.

          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.

         I. Introduction

         This is 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.

         This 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.

         II. Procedural History

         Petitioner's 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. 11-005857-FC.

         On May 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 8, 2016).

         Petitioner 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.

         III. Discussion

         The 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 ...

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