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Drayton v. Clarke

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

October 3, 2018

KEVIN MICHAEL DRAYTON, JR., Petitioner,
v.
HAROLD CLARKE, Respondent.

          REPORT AND RECOMMENDATION

          Roderick C. Young, United States Magistrate Judge

         Kevin Michael Drayton, Jr., a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1). Respondent has moved to dismiss the action (ECF No. 11). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DISMISSED because Drayton's claims are barred by the relevant statute of limitations or fail to provide a viable basis for federal habeas corpus relief.

         A. Pertinent State Procedural History

         Drayton was convicted in the Circuit Court of Hanover County ("Circuit Court") of: first degree murder; aggravated malicious wounding; use of a firearm to commit murder; conspiracy to commit robbery; and, use of a firearm to commit aggravate malicious wounding. (ECF No. 13-1, at l.)[1] The Circuit Court sentenced Drayton to active sentence of twenty-seven years of imprisonment. (Id. at 2-3.) Drayton appealed. On November 6, 2014, the Supreme Court of Virginia refused Drayton's petition for appeal. (ECF No. 13-3, at 1.)

         On November 5, 2015, Drayton filed a petition for a writ of habeas corpus with the Circuit Court. (ECF No. 13-5, at 2.) On August 22, 2017, the Circuit Court dismissed the petition. (Id. at 9-10.)

         Drayton, by counsel, filed a notice of appeal on September 25, 2017. (ECF No. 13-6, at 3.) On November 14, 2017, Drayton, by counsel, moved the Supreme Court of Virginia for an extension of time to file his notice of appeal. (ECF No. 13-6, at I.) Counsel explained the late filing of the notice of appeal was attributable to a malfunctioning FedEx dropbox. (Id. at 3.) On November 27, 2017, the Supreme Court of Virginia denied the motion for an extension of time. (Id. at 1.) On January 31, 2018, the Supreme Court of Virginia dismissed Drayton's appeal, finding that he had failed to file his notice of appeal in a timely manner. (ECF No. 13-7, at 1.)

         B. Filing of the § 2254 Petition

         On April 28, 2018, Drayton executed his § 2254 Petition and presumably placed it in the prison mail system.[2] (§ 2254 Pet. 28.)[3] In his § 2254 Petition, Drayton contends that he is entitled to relief upon the following grounds:[4]

         Ground 1 "Counsel failed to object on evidentiary grounds to the continued use of inadmissible co-defendant statements against Petitioner Drayton." (Id. at 3.)

A. "Admission of inculpatory co-defendant statements against Mr. Drayton violated both his Sixth Amendment right of confrontation and the evidentiary ruling of the trial court." (Id.)
B. "Trial counsel repeatedly failed to object to the Commonwealth's impermissible use of Mr. Drayton's co-defendant's statements." (Id.)
C. "Counsel additionally failed to object to the trial court's use of the co-defendant's statement against Mr. Drayton." (Id.)
D. "Counsel contributed to the impermissible use of co-defendant's statements against Mr. Drayton by entirely incorporating the arguments of co-counsel into his own." (Id. at 3-4.)
E. "In failing to make these objections, trial counsel's performance was deficient." (Id. ...

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