Fyke v. Place

Filing 11

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. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS FYKE, #606042,
Petitioner,
CASE NO. 16-CV-13105
HONORABLE TERRENCE G. BERG

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
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

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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
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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
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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 retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d). A habeas petition filed outside the proscribed time
period must be dismissed. See Isham v. Randle, 226 F.3d 691, 694-95

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(6th Cir. 2000) (dismissing case filed 13 days late); Wilson v. Birkett,
192 F. Supp. 2d 763, 765 (E.D. Mich. 2002).
A preliminary question in this case is whether Petitioner has
complied with the one-year statute of limitations. “[D]istrict courts are
permitted . . . to consider sua sponte, the timeliness of a state prisoner’s
federal habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006).
Petitioner’s conviction and sentence became final after the
AEDPA’s April 24, 1996 effective date. Petitioner was sentenced on
September 6, 2011. He then had six months after sentencing to file a
late application for leave to appeal. See Mich. Ct. R. 7.205(G)(3). He
did not do so. Rather, he filed a motion to withdraw his plea on March
5, 2012. That motion was denied on May 15, 2012. Petitioner then had
21 days to seek leave to appeal with the Michigan Court of Appeals. See
Mich. Ct. R. 7.205(G)(4). He did not do so. Thus, his conviction became
final on June 5, 2012. Accordingly, Petitioner was required to file his
federal habeas petition by June 5, 2013, excluding any time during
which a properly filed application for state post-conviction or collateral
review was pending in accordance with 28 U.S.C. § 2244(d)(2).
Petitioner filed his motion for relief from judgment with the state
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trial court on May 7, 2013. At that point, approximately 11 months of
the one-year period had run. The period was then tolled until the
Michigan Supreme Court denied leave to appeal on March 8, 2016.
Petitioner then had about one month, until approximately April 8, 2016,
to file his federal habeas petition. The AEDPA’s limitations period does
not begin to run anew after the completion of state post-conviction
proceedings. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).
Petitioner did not date his habeas petition until August 24, 2016 – more
than four months after the one-year period had expired.
Petitioner does not allege that the state created an impediment to
the filing of his petition, that his claims are based upon newlydiscovered evidence, or that his claims are based upon newly-enacted,
retroactively applicable law. His habeas petition is therefore untimely
under 28 U.S.C. § 2244(d).
The United States Supreme Court has confirmed that the oneyear statute of limitations is not a jurisdictional bar and is subject to
equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). The
Supreme Court has explained that a habeas petitioner is entitled to
equitable tolling “only if he shows ‘(1) that he has been pursuing his
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rights diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Id. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Robertson v. Simpson,
624 F.3d 781, 783-84 (6th Cir. 2010). A petitioner has the burden of
demonstrating that he is entitled to equitable tolling. Hall v. Warden,
Lebanon Corr. Inst., 662 F.3d 745, 749–50 (6th Cir. 2011) (citing
Holland); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). “Typically,
equitable tolling applied only when a litigant’s failure to meet a legallymandated deadline unavoidably arose from circumstances beyond that
litigant’s control.” Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003)
(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 560 (6th Cir. 2000)).
Petitioner asserts that he is entitled to equitable tolling because
he is not mentally capable of reading and understanding criminal law
and has a limited education. The fact that Petitioner has a limited
education and is untrained in the law, is (or was) proceeding without a
lawyer or other legal assistance, or may have been unaware of the
statute of limitations for a period of time does not warrant tolling. See
Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir.
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2012) (pro se status is not an extraordinary circumstance); Allen, 366
F.3d at 403 (ignorance of the law does not justify tolling); 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 legal assistance does not justify
tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998)
(citing cases stating that ignorance of the law, illiteracy, and lack of
legal assistance do not justify tolling).
Petitioner also asserts that he is entitled to equitable tolling
because he is confined in maximum security, needed time to assemble
materials in support of his claims on his own and with the limited help
of others, and had to utilize jailhouse lawyers and/or the Michigan
Legal Writer’s Program to prepare his legal documents. Such typical
conditions of prison life do not warrant tolling. See, e.g, Hall, 662 F.3d
at 752 (ruling that pro se status and inability to access transcripts for a
period of time did not justify equitable tolling); Maclin v. Robinson, 74
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F. App’x 587, 589 (6th Cir. 2003) (limited access to prison law library
does not constitute a state impediment under 28 U.S.C. § 2244(d)(1)(B));
Allison v. Smith, No. 2:14-CV-10423, 2014 WL 2217238, *5 (E.D. Mich.
May 29, 2014) (citing Smith v. Beightler, 49 F. App’x 579, 580-81 (6th
Cir. 2002), and ruling that bad advice from fellow inmate or other nonlawyers does not warrant equitable tolling); Arriaga v. Gonzales, No.
13-CV-1372, 2014 WL 5661023, *12 (C.D. Cal. Oct. 31, 2014) (reliance
on jailhouse lawyers is not an extraordinary circumstance). Petitioner’s
contention that his claims have merit also does not justify tolling the
one-year period. Holloway, 166 F. Supp. 2d at 1191.
Petitioner further asserts that he is entitled to equitable tolling
because he was confused by the entire process due to his use of
psychotropic medication. Petitioner does not elaborate on this issue. A
habeas petitioner’s mental incompetence may constitute an
extraordinary circumstance which justifies equitable tolling of the oneyear period, but only if that condition prevents the timely filing of a
habeas petition. Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). In
other words, to be entitled to equitable tolling on such a basis, a habeas
petitioner must show that he was mentally incompetent and that his
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mental impairment was the cause for the late filing. Id.; Robertson v.
Simpson, 624 F.3d 781, 785 (6th Cir. 2010); see also Plummer v.
Warren, 463 F. App’x 501, 506 (6th Cir. 2012) (“Illness—mental or
physical—tolls a statute of limitations only if it actually prevents the
sufferer from pursuing his legal rights during the limitations period.”).
Furthermore, a mental impairment “might justify equitable tolling if it
interferes with the ability to understand the need for assistance, the
ability to secure it, or the ability to cooperate with or monitor
assistance” once obtained. Stiltner v. Hart, _ F. App’x _, 2016 WL
5403898, *7 (6th Cir. Sept. 28, 2016) (quoting Bills v. Clark, 628 F.3d
1092, 1100 (9th Cir. 2010)).
Petitioner does not meet this standard. He fails to allege any facts
to show that his mental health condition or the side effects of any
medication were significant during the relevant time period or that they
impaired his ability to pursue state court remedies and seek federal
habeas relief in a timely manner. Moreover, “speculation about the
impact of mental illness on the ability to timely file a habeas petition is
not sufficient to warrant an evidentiary hearing.” McSwain v. Davis,
287 F. App’x 450, 457-58 (6th Cir. 2008). Petitioner also fails to show
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that any mental health issues impaired his ability to obtain legal
assistance in a timely manner. To be sure, it appears that Petitioner
recognized that he would benefit from legal assistance during the
relevant time period and that he obtained some assistance. Petitioner
fails to demonstrate that he is entitled to equitable tolling under
Holland.
Both the United States Supreme Court and the United States
Court of Appeals for the Sixth Circuit have held that a credible claim of
actual innocence may equitably toll the one-year statute of limitations.
McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1928 (2013);
Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). As explained in
Souter, to support a claim of actual innocence, a petitioner in a
collateral proceeding “must demonstrate that, in light of all the
evidence, it is more likely than not that no reasonable juror would have
convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998)
(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v.
Bell, 547 U.S. 518, 537-39 (2006). A valid claim of actual innocence
requires a petitioner “to support his allegations of constitutional error
with new reliable evidence – whether it be exculpatory scientific
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evidence, trustworthy eyewitness account, or critical physical evidence
– that was not presented at trial.” Schlup, 513 U.S. at 324.
Furthermore, actual innocence means “factual innocence, not mere legal
insufficiency.” Bousley, 523 U.S. at 623. In keeping with Supreme
Court authority, the Sixth Circuit has recognized that the actual
innocence exception should “remain rare” and “only be applied in the
‘extraordinary case.’” Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S.
at 321).
Petitioner makes no such showing. None of the materials
included with his petition establish his actual innocence under the
foregoing standards. Moreover, his assertion that he lacked the intent
to murder is merely a claim of legal insufficiency, not a claim of factual
innocence. See Bousley, 523 U.S. at 623. Petitioner’s argument that his
habeas claims have merit and that his plea is invalid do not establish
his actual innocence. See, e.g., Craig v. White, 227 F. App’x 480, 481
(6th Cir. 2007). His own self-serving, conclusory assertions of innocence
are also insufficient to support an actual innocence claim. A
“reasonable juror surely could discount [a petitioner’s] own testimony in
support of his own cause.” McCray v. Vasbinder, 499 F.3d 568, 573 (6th
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Cir. 2007) (citing cases). Furthermore, Petitioner’s no contest plea
belies an actual innocence claim. See, e.g., Loving v. Mahaffey, 27 F.
App’x 925, 926 (10th Cir. 2001) (noting that a claim of actual innocence
is difficult to establish, particularly when a defendant pleads guilty);
Reeves v. Cason, 380 F. Supp. 2d 883, 885 (E.D. Mich. 2005). Petitioner
fails to establish that he is entitled to equitable tolling of the one-year
period. His habeas petition is therefore untimely and must be
dismissed.
IV.

Conclusion
Based upon the foregoing discussion, the Court concludes that the

habeas petition is untimely and that Petitioner is not entitled to
equitable tolling of the one-year period. Accordingly, the Court
GRANTS Respondent’s motion for dismissal and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, 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
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substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the claim
debatable or wrong. 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 court was correct in its
procedural ruling. Id. In this case, jurists of reason could not find the
Court’s procedural ruling that the petition is untimely debatable.
Accordingly, the Court DENIES a certificate of appealability.
Lastly, the Court finds that an appeal from this decision cannot be
taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the Court
DENIES Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: October 31, 2017

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Certificate of Service
I hereby certify that this Order was electronically submitted on October
31, 2017, using the CM/ECF system, which will send notification to
each party.
By: s/A. Chubb
Case Manager

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