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Cleaton v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

August 22, 2016

Darnell M. Cleaton, Petitioner,
Harold Clarke, Respondent.


          Liam O'Grady United States District Judge

         Darnell M. Cleaton, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of a drug offense entered in the Circuit Court for the County of Brunswick. By an Order dated May 7, 2015, petitioner was directed to file an amended petition using a standardized form §2254 petition. Dkt. No. 7. Upon receipt and review of the amended petition, a second Order was entered on July 24, 2015, advising petitioner that his claims appeared to be time-barred pursuant to 28 U.S.C. §2244(d), and allowing him thirty (30) days within which to contest the applicability of the statute of limitation or to establish his entitlement to equitable tolling. See Hill v. Braxton. 277 F.3d 701, 707 (4th Cir. 2002) (requiring notice and the opportunity to respond before a sua sponte dismissal under § 2244(d)); Dkt. No. 8. Petitioner replied to the Court's Order by claiming entitlement to equitable tolling based in part on his counsel's allegedly ineffective representation. Dkt. No. 11. Accordingly, on September 8, 2015, an Order was entered directing respondent to file a response to the petition limited to the issues of its timeliness and petitioner's entitlement to equitable tolling. Dkt. No. 12. On October 7, 2015, respondent filed a Motion to Dismiss the petition with a supporting brief and exhibits, and supplied petitioner with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K); Dkt. No. 15-17. Petitioner filed a reply to the Motion to Dismiss captioned as a Motion of Rebuttal along with additional exhibits on November 2, 2015. Dkt. No. 18. Accordingly, this matter is now ripe for disposition.[1] For the reasons which follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, as time-barred.

         I. Procedural History

         On December 18, 2007, petitioner was charged by indictment in Brunswick County with possession of cocaine with intent to distribute. Case No. CR07-279; Dkt. No. 16, Ex. A. He was found guilty following a bench trial on February 11, 2008, and on April 14, 2008, he was sentenced to serve ten (10) years in prison with five (5) years and six (6) months suspended. Id., Ex. B. Petitioner's counsel filed a brief pursuant to Anders v. California. 386 U.S. 738 (1967) on direct appeal, assigning the sole error that the trial judge erred in admitting into evidence a statement of a caller on a cell phone. The Court of Appeals denied the appeal as wholly frivolous. Cleaton v. Commonwealth. R. No. 1130-08-2 (Va. Ct. App. Dec. 12, 2008); Dkt. No. 16, Ex. C, and the Supreme Court of Virginia refused a petition for further appeal on August 24, 2009. Cleaton v. Commonwealth. R. No. 090700 (Va. Aug. 24, 2009); Dkt. No. 16, Ex. D.

         On August 18, 2010, petitioner filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, arguing that his right to confrontation was violated when the Commonwealth was permitted to introduce out-of-court statements. Dkt. No. 16, Ex. H, Pet., "Certificate of Service."[2] The petition was dismissed pursuant to the state default rule of Slayton v. Parrigan. 215 Va. 27, 205 S.E.2d 680 (1974) on October 6, 2010. Cleaton v. Warden. Green Rock Corr. Ctr.. R. No. 101627 (Va. Oct. 6, 2010); Dkt. No. 16, Ex. H.

         In November, 2011 and again in September, 2012, petitioner filed a Motion for Scientific Analysis of Untested Evidence, seeking to have the plastic bags that contained the drugs tested for fingerprints. Dkt. No. 11 at 31-36. On September 8, 2014, the Commonwealth's Attorney filed a response stating that the evidence had been destroyed. Dkt. No. 16, Ex. I. The destruction order attached to the response indicated that a metal pipe was also part of the evidence to be destroyed. The trial court denied petitioner's motion for scientific testing on September 11, 2014. Dkt. No. 16, Ex. J. Petitioner appealed that result, but the Supreme Court of Virginia dismissed the appeal on June 29, 2015 on the holding that the order appealed from was not an appealable order. Cleaton v. Commonwealth. R. No. 150416 (Va. June 29, 2015); Dkt. No. 16, Ex. K. On September 11, 2014, petitioner also filed a petition for a writ of mandamus in the Supreme Court of Virginia, arguing that he had been denied access to records in the criminal case. The petition was denied on April 8, 2015, and rehearing was refused on October 15, 2015.[3] Cleaton v. Green. R. No. 141635 (Va. Apr. 8, 2015); Dkt. No. 16, Ex, L.

         Petitioner then turned to the federal forum and filed the instant application for relief pursuant to §2254 on or about March 24, 2015. Pet. at 1. In it, he makes the following claims:

1. The chain of custody was defective, and counsel failed to raise the issue on direct appeal. Petitioner lacks documents needed to establish his innocence.
2. Prosecutorial misconduct and malicious prosecution resulted in newly-discovered evidence - a metal pipe -being added to the case. Premature destruction of the evidence violated his right to due process.
3. He was denied his right to confront his accusers at the grand jury proceeding. The indictment was invalid as it did not contain the signatures of the foreman and a judge of competent jurisdiction.
4. He received ineffective assistance of counsel when his lawyer told him there was no need for discovery and failed to raise the deficiency of the chain of custody as an issue on direct appeal.

         II. Facts

         On September 7, 2007, Deputy Clary of the Brunswick County Sheriffs Department observed a car being driven erratically, and he followed it in his marked patrol car. DE 16, Ex. M, T. 10. The vehicle accelerated and the driver turned off the headlights. Id. at 11. When the car turned into the parking lot of an apartment complex, the driver and a passenger jumped out and ran. Id. at 11-12. Clary chased the passenger, a black male wearing a blue shirt with a white design, and as he did so the passenger dropped a cell phone on the sidewalk. Id. at 12-13. The passenger got away, but Clary retrieved the phone and called in to dispatch. Id. at 13-14. The phone rang constantly and when Sergeant Mays answered it, the caller asked, "Where's Darnell?" Id. at 19.

         Deputy Smith heard Clary's dispatch and responded to the area. Id. at 24-25. Smith saw a man wearing a flowery shirt, and as he and his partner got closer the man took the shirt off, dropped it to the sidewalk, and kept walking. Id. at 26. Smith recognized the man as the instant petitioner, Darnell Cleaton. Id. at 27-28. The officers detained petitioner for investigation and handcuffed him to prevent further flight. Id. at 28. When Smith went to retrieve the shirt petitioner had dropped, he found a bag sitting next to it that contained several rocks of cocaine individually wrapped in baggie corners. Id. at 29-30. The shirt had berry stains and briars on it. Id. at 40. The deputies seized $84.00 from petitioner. Id. at 37. The entire incident took less than ten minutes. Id. at 21.

         Petitioner testified at trial. He denied that he had discarded the shirt, and he stated that the briars and berry stains were the result of his working outside at a laundromat. Id. at 58-59, 66. He also stated that his cell phone had been stolen the ...

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