Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Drayton v. Clarke

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

January 15, 2019

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

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Kevin Michael Drayton, Jr., a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1).

         I. History of the Federal Proceedings

         On October 3, 2018, the Magistrate Judge issued a Report and Recommendation wherein he recommended that the Court deny the § 2254 Petition as barred by the relevant statute of limitations. Because it appeared that Drayton failed to file timely objections, by Memorandum Opinion and Order entered on November 1, 2018, the Court accepted the Report and Recommendation and dismissed the action. (ECF Nos. 22, 23.)

         However, on November 7, 2018, the Clerk's Office for the Richmond Division of the United States District Court for the Eastern District of Virginia received Drayton's Response to Magistrate Report and Recommendation ("Objections," ECF No. 24). Drayton mailed his Objections to the Alexandria Division of this Court and it was received there on October 23, 2018. (ECF No. 24-1.) The Alexandria Division forwarded the Objections to this Division, but did not do so until November 7, 2018.

         Drayton indicates that he mailed these Objections to the Court on October 16, 2018. (Obj. 2.) The Court deems the Objections filed as of this date. See Houston v. Lack, 487 U.S. 266, 276 (1988). Because the Objections were filed in a timely manner, the Court will VACATE the November 1, 2018 Memorandum Opinion and Order (ECF Nos. 22, 23) and consider the Objections. See Fed. R. Civ. P. 59(e). Nevertheless, for the reasons set forth below, the Report and Recommendation (ECF No. 21) will be ACCEPTED and ADOPTED and the action will be DISMISSED.

         II. The Report and Recommendation

         The Magistrate Judge made the following finding and recommendations:

         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 1.) 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.