United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
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).
History of the Federal Proceedings
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.)
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.
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.
The Report and Recommendation
Magistrate Judge made the following finding and
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 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,
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:
Ground 1 "Counsel failed to object on evidentiary
grounds to the continued use of inadmissible co-defendant
statements against Petitioner Drayton." (Id. at
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 ...