Drayton v. LaSalle Correctional Center

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Carlos Dewayne Drayton. IT IS RECOMMENDED that the petition for habeas corpus be DISMISSED WITH PREJUDICE because petitioner's claims are barred by the one-year limitation period codified at 28 USC 2244(d). Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Karen L Hayes on 1/03/2014. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
CARLOS DEWAYNE DRAYTON
LA. DOC #465149
VS.

CIVIL ACTION NO. 3:13-cv-2994
SECTION P
JUDGE ROBERT G. JAMES

WARDEN, LaSALLE
CORRECTIONS CENTER

MAGISTRATE JUDGE KAREN L. HAYES

REPORT AND RECOMMENDATION
Pro se petitioner Carlos Dewayne Drayton, an inmate in the custody of Louisiana’s
Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. §2254 on November 4, 2013. Petitioner attacks his April 28, 2010, conviction for being a
felon in possession of a firearm and the 13 year sentence imposed thereon by Louisiana’s Fourth
Judicial District Court, Ouachita Parish. This matter has been referred to the undersigned for
review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the
standing orders of the Court. For the following reasons it is recommended that the petition be
DISMISSED WITH PREJUDICE as time-barred by the provisions of 28 U.S.C. §2244(d)(1).
Statement of the Case
Petitioner was convicted of being a felon in possession of a firearm in a trial that
concluded on April 28, 2010. On June 30, 2010, he was sentenced to serve 13 years at hard labor.
[Doc. 1, ¶1-7]
On July 20, 2010, he filed an application for writ of mandamus in the Second Circuit
Court of Appeals. The application requested the Court of Appeal to order production of pre-trial
discovery documents and his immediate release from custody. On September 16, 2010, the Court

of Appeals denied relief noting that petitioner had not filed his pleading with the trial court prior
to filing his application in the Court of Appeal. State of Louisiana v. Carlos Drayton, No.
45,936-KH. [Doc. 1-3, p. 13]
Thereafter, he appealed his conviction and sentence to the Second Circuit Court of
Appeals raising one counseled claim – excessiveness of sentence; and four pro se claims –
(1) insufficiency of the evidence based upon the lack of credibility and inconsistencies in the
arresting officers’ testimony; (2) arrest, search, and seizure were done without probable cause,
(3) double jeopardy, and (4) ineffective assistance of counsel based on counsel’s failure to
conduct a full investigation.
On April 13, 2011, the Court of Appeals affirmed his conviction and sentence. The Court
denied his Fourth Amendment claim as procedurally defaulted pursuant to La. C.Cr.P. art. 703(F)
which provides, “Failure to file a motion to suppress evidence in accordance with this Article
prevents the defendant from objecting to its admissibility at the trial on the merits on a ground
assertable by a motion to suppress...” and La. C.Cr.P. art. 841(A) which provides, “An
irregularity or error cannot be availed of after verdict unless it was objected to at the time of
occurrence.” The Court further noted, in passing, that the actions of the arresting officers were
authorized by La. C.Cr.P. art. 215.1. The Court did not reach the merits of his ineffective
assistance of counsel claim noting that such claims are better raised in an application for postconviction relief which has provisions for an evidentiary hearing. State of Louisiana v. Carlos
Dewayne Drayton, 46,191 (La. App. 2 Cir. 4/13/2011), 63 So.3d 319.
On July 20, 2011, petitioner submitted documents to the Second Circuit Court of Appeals
for filing. On August 22, 2011, the papers were returned unfiled with the admonition that
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petitioner must first seek relief in the lower court and then obtain a ruling before proceeding in
the Court of Appeal. [Doc. 1-3, p. 16]
On August 3, 2011, petitioner filed a pro se Motion to Vacate or Set Aside Sentence and
a Motion for the Appointment of Counsel in the Fourth Judicial District Court. The former
motion alleged a defective bill of information. On August 22, 2011, the District Court, noting
that petitioner had failed to file a motion to quash alleging the defects in the bill of information,
denied the motion as procedurally defaulted. [Doc. 1-3, p. 17]
On October 6, 2011, petitioner filed a pro se application for writ of certiorari in the
Louisiana Supreme Court. This pleading, which was post-marked October 3, 2011, sought
review of the Second Circuit’s judgment in Docket Number 46,940-KH and was assigned
Supreme Court Docket Number 2011-KH-2178. [Doc. 1-3, p. 14] The Supreme Court denied
writs on May 25, 2012. State of Louisiana ex rel. Carlos Drayton v. State of Louisiana, 20112178 (La. 5/25/2012), 90 So.3d 401.
Petitioner filed a pro se application for writ of certiorari in the Louisiana Supreme Court.
The pleading, which sought review of the appeal under Docket Number 46,191, also sought
review of another Second Circuit judgment or order under Docket Number 46,866-KH. It was
post-marked October 20, 2011, received and filed on October 24, 2011, and assigned Docket No.
2011-KH-2343. [Doc. 1-3, p. 15] On June 1, 2012, writs were denied. State of Louisiana ex rel.
Carlos D. Drayton v. State of Louisiana, 2011-2343 (La. 6/1/2012), 90 So.3d 430.
On February 20, 2013, petitioner filed a pro se Motion to Modify and/or Amend his
Sentence in the Second Circuit Court of Appeals. On April 4, 2013, it was denied on the grounds
that the motion did not request review the prior ruling of the trial court, nor did petitioner attach
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any such ruling to his motion. State of Louisiana v. Carlos Drayton, No. 48,261-KH. [Doc. 1-3,
pp. 9-10]
Petitioner signed his petition on October 30, 2013. It was received and filed on November
4, 2013. He argues the following claims for relief – (1) defective bill of information; (2) illegal
search and seizure of evidence; (3) ineffective assistance of counsel based on counsel’s failure to
litigate petitioner’s pro se motion to quash the defective bill of information, his failure to object
to errors at trial, his failure to prepare a defense or to file a motion to reconsider on direct appeal,
his failure to argue excessiveness of sentence, and his failure to file a motion to suppress; (4) the
denial of due process based upon allegations ineffective assistance of counsel, illegal search and
seizure, defective bill of information, and excessiveness of sentence. [Doc. 1]
On December 4, 2013, petitioner was directed to amend his petition to provide copies of
some of the appeal and post-conviction pleadings filed in the Louisiana courts.1 He was also
directed to “... demonstrate that his habeas petition is NOT time-barred by the provisions of 28
U.S.C. §2244(d) by establishing the date that his judgment of conviction became final and the
dates during which he would be entitled to statutory or equitable tolling and should provide
supporting documentation ...” and, to “... demonstrate that he exhausted available State court
remedies with regard to EACH claim for relief raised herein ...” [Doc. 8]
On December 27, 2013, he responded to that order asking the Court to either grant or

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Petitioner was ordered to provide: (1) A copy of the writ application filed by petitioner
in the Second Circuit under Docket No. 46,940-KH; (2) A copy of the Second Circuit’s
Judgment/Order in Docket No. 46,940-KH; (3) A copy of the writ application filed in the
Louisiana Supreme Court in Docket No. 2011-KH-2178; and, (4) A copy of the writ application
filed in the Louisiana Supreme Court in Docket No. 2011-KH-2343. [Doc. 8]
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deny his petition based upon the information thus far supplied. He also provided copies of
correspondence he received from the Second Circuit Court of Appeals and the Louisiana
Supreme Court outlining the costs for copies of the documents which were requested. [Doc. 9-1,
pp. 1-3]2 He did not explain why he did not maintain a personal file of his appeal and postconviction pleadings or the Court orders denying relief.
Law and Analysis
1. Limitations – 28 U.S.C. §2244(d)(1)(A)
Title 28 U.S.C. §2244(d)(1)(A) (as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996 or AEDPA) provides a 1-year statute of limitations for the filing of
applications for habeas corpus by persons, such as petitioner, who are in custody pursuant to the
judgment of a State court. This limitation period generally runs from “...the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review...” 28 U.S.C. §2244(d)(1)(A).3
The statutory tolling provision of 28 U.S.C. § 2244(d)(2) provides that the time during
which a properly filed application for post-conviction relief was pending in state court is not
counted toward the limitation period. Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999); Fields
v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. §2244(d)(2). However, any lapse of

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The Supreme Court estimated the cost of providing the documents requested as $10.25;
the Second Circuit advised that he could obtain a copy of the Order for $1.00/page and a copy of
the writ application for $1.50/page. However, the Court did not indicate the number of pages.
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It does not appear that any State created impediments prevented the filing of this petition.
Further, it does not appear that petitioner is relying on a constitutional right newly recognized by
the United States Supreme Court and made retroactively applicable to cases on collateral review.
Finally, it does not appear that the factual predicate of the claims presented was only recently
discovered. [See 28 U.S.C. § 2244(d)(1)(B), (C), and (D)].
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time before the proper filing of an application for post-conviction relief in state court is counted
against the one-year limitation period [see Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir.
1999), citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.1998)] and, of course, the
limitations period is tolled only for as long as the state application remains pending in the state’s
courts. Johnson v. Quarterman, 483 F.3d 278 (5th Cir. 2007). Federal courts may raise the oneyear time limitation sua sponte. Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Petitioner appealed his conviction to the Second Circuit Court of Appeals. On April 13,
2011, his conviction and sentence were affirmed and presumably notice of judgment was sent to
petitioner and his appellate counsel. State of Louisiana v. Carlos Dewayne Drayton, 46,191 (La.
App. 2 Cir. 4/13/2011), 63 So.3d 319. Thereafter, and pursuant to Supreme Court Rule X, §5(a),
petitioner had 30 days following the Second Circuit’s mailing of notice of judgment within
which to timely petition the Supreme Court for further direct review, or, until on or about May
13, 2011. However, according to evidence submitted by the petitioner, he did not mail his pro se
writ application to the Louisiana Supreme Court until October 20, 2011 [See Doc. 1-3, p. 15] ,
and by that time the 30-day filing limit established by the Supreme Court’s rule had long expired.
Therefore, petitioner’s judgment of conviction “... became final by ... expiration of the time for
seeking [further direct] review...” under 28 U.S.C. §2244(d)(1)(A) when the 30-day period for
seeking further direct review pursuant to Louisiana Supreme Court Rule X, §5(a) expired on May
13, 2011. Compare Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008)4
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In Butler, the Fifth Circuit analyzed a similar scenario and concluded: “Louisiana
Supreme Court Rule X, § 5(a) states that an application ‘to review a judgment of the court of
appeal either after an appeal to that court ... or after a denial of an application, shall be made
within thirty days of the mailing of the notice of the original judgment of the court of appeal.’
[The] time for seeking further review of his state conviction expired when he did not within
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Thereafter, since petitioner’s judgment of conviction became final under the AEDPA on
May 13, 2011, petitioner had 1-year, or until May 13, 2012, to file his federal habeas corpus
petition. Petitioner’s federal habeas corpus petition, filed on October 30, 2013, is clearly timebarred unless he can establish tolling of the limitations period pursuant to Section 2244(d)(2)
which provides, as noted above, “The time during which a properly filed application for State
post-conviction or other collateral review ... is pending shall not be counted toward any period of
limitation under this section.”
Petitioner submitted various pleadings to the Second Circuit Court of Appeals on July 20,
2011; however those documents were returned to him unfiled on August 22, 2011, because his
“application fail[ed] to comply with the filing requirements for writs (U.R.C.A. Rule 4-5).”
Petitioner was further advised, “This is a Court of review that reviews the decisions of lower
courts. If you have a complaint about your case, you must first seek relief in the lower court, get
a ruling, and then, if necessary, seek review from this Court. Your application fails to contain a

thirty days of the Louisiana Court of Appeal’s ... decision, challenge that decision in the state
Supreme Court.”) Furthermore, it does not appear that petitioner either sought an extension of
time from the Supreme Court, or permission to file an out-of-time writ application. Compare
Gilmore v. Baronne Development, LLC, 2001-1104 (La. 5/4/2001), 791 So.2d 647; see also
Butler, 533 F.3d at 319 (“ ... there is no indication that the state court granted an extension or
otherwise waived its own rule as to Butler. Butler did not even request an extension of time to
file his late direct review application. He has not claimed that he received a letter from that court
allowing a late filing such as did the defendant in Hill v. Cooper, 2007 WL 458207, No. 04-2588
(E.D.La.2007). We are not aware of any case in which the Louisiana Supreme Court sua sponte
extended the amount of time in which to file under Rule X, § 5(a). Contra Hughes, 249
Fed.Appx. at 341 (Hughes requested and received an extension under § 5(b)); McGee v. Cain,
104 Fed.Appx. 989 (5th Cir.2004) (unpublished) (requested and did not receive an extension
under § 5(a)); Hill, 2007 WL 458207 at *2 (requested and did receive an extension – unclear
what basis). We conclude that the Louisiana Supreme Court found Butler’s application for
further review of his conviction to be untimely.”)
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copy of any filing allegedly made by you in the district court.” [Doc. 1-3, p. 16] Clearly, this
pleading, which was returned unfiled, was not a “properly filed application for State postconviction or other collateral review” and therefore could not serve to toll limitations.
Petitioner then filed a Motion to Vacate/Set Aside Sentence in the Fourth Judicial District
Court on August 3, 2011. This motion was deemed identical to an application for habeas corpus
filed on July 27, 2011. This motion (and presumably the application which preceded it) were
denied as procedurally defaulted by the trial court on August 22, 2011. [Doc. 1-3, p. 17]
Thereafter, the record is unclear. However, giving the petitioner the benefit of the doubt, for the
purposes of this Report, it may be assumed that his Motion/Application, filed at the earliest on
July 27, 2011, remained pending until June 1, 2012, the date of the Louisiana Supreme Court’s
last published writ denial involving this petitioner. See State of Louisiana ex rel. Carlos
Dewayne Drayton vs. State of Louisiana, 2011-2343 (La. 6/1/2012), 90 So.3d 430.
Thereafter, a period of almost 17 months elapsed un-tolled before petitioner filed the
instant petition on October 30, 2013. Even if petitioner were allowed to toll the period between
February 20, 2013 (the date he filed his Motion to Modify Sentence in the Second Circuit Court
of Appeals) and April 4, 2013 (the date the Court of Appeals rejected the pleading as being
improperly filed in the Court of Appeals) [see Doc. 1-3, pp. 9-10], it is clear that a period in
excess of one year elapsed un-tolled between the date his judgment of conviction became final
and the date he filed the instant petition.
2. Equitable Tolling
The Fifth Circuit has held that the AEDPA’s one-year statute of limitations can, in rare
and exceptional circumstances, be equitably tolled. See Davis v. Johnson, 158 F.3d 806, 811 (5th
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Cir.1998). However, “[e]quitable tolling applies principally where the plaintiff is actively misled
by the defendant about the cause of action or is prevented in some extraordinary way from
asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quotation marks
omitted). “A petitioner’s failure to satisfy the statute of limitations must result from external
factors beyond his control; delays of the petitioner’s own making do not qualify.” In re Wilson,
442 F.3d 872, 875 (5th Cir.2006). As recently noted by the Supreme Court, “To be entitled to
equitable tolling, [the petitioner] must show ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”
Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)).
Nothing of record thus far supports equitable tolling of the statute of limitations in the
instant case. It does not appear from the evidence thus far submitted that petitioner was either
actively misled by the state or otherwise prevented in some extraordinary way from asserting his
rights by timely filing his habeas claims.
Nevertheless, this is a Report and Recommendation, and, as shown below, petitioner may
object to this Report and he is encouraged to provide evidence and argument to support any claim
of equitable tolling.
3. Conclusion and Recommendation
Therefore,
IT IS RECOMMENDED that this petition for habeas corpus be DISMISSED WITH
PREJUDICE because petitioner’s claims are barred by the one-year limitation period codified
at 28 U.S.C. §2244(d).
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Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved
by this recommendation have fourteen (14) days from service of this report and recommendation
to file specific, written objections with the Clerk of Court. A party may respond to another
party’s objections within fourteen (14) days after being served with a copy of any objections or
response to the District Judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in this Report and Recommendation within fourteen
(14) days following the date of its service, or within the time frame authorized by
Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or
the legal conclusions accepted by the District Court, except upon grounds of plain error.
See, Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).5
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts, this court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days
from service of this Report and Recommendation, the parties may file a memorandum

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As noted above, petitioner is encouraged to file timely objections to this Report and
to provide evidence in support of any claim he may have to establish that his petition is
timely or, if untimely, that he is entitled to equitable tolling of the AEDPA’s limitation
period. SHOULD HE OBJECT, HE IS SPECIFICALLY DIRECTED TO PROVIDE
EVIDENCE TO SUPPORT THE NOTION THAT HIS APPLICATION FOR
CERTIORARI ON DIRECT APPEAL WAS EITHER TIMELY FILED, OR THAT HE
WAS AFFORDED AN EXTENSION OF TIME WITHIN WHICH TO FILE BY THE
LOUISIANA SUPREME COURT. HE IS ALSO ENCOURAGED TO PROVIDE SUCH
EVIDENCE AS IS AVAILABLE TO ESTABLISH HIS ENTITLEMENT TO
EQUITABLE OR STATUTORY TOLLING.
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setting forth arguments on whether a certificate of appealability should issue. See 28
U.S.C. §2253(c)(2). A courtesy copy of the memorandum shall be provided to the District
Judge at the time of filing.
In Chambers, Monroe, Louisiana, January 3, 2014.

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