United States District Court, E.D. Virginia, Alexandria Division
Darnell M. Cleaton, Petitioner,
Harold Clarke, Respondent.
O'Grady United States District Judge
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. For the reasons which follow,
respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, as time-barred.
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.
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." 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.
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. Cleaton v. Green. R. No. 141635
(Va. Apr. 8, 2015); Dkt. No. 16, Ex, L.
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
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
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
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.
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.
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 ...