United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
Roderick C. Young, United States Magistrate Judge
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.
Pertinent State Procedural History
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
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.)
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.)
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,
Filing of the § 2254 Petition
April 28, 2018, Drayton executed his § 2254 Petition and
presumably placed it in the prison mail system. (§ 2254 Pet.
In his § 2254 Petition, Drayton contends that he is
entitled to relief upon the following grounds:
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
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.