Petition for Writ of Certiorari — Quillen v. Raines (No. 05-925)

App. 6

RULES OF THE SUPREME COURT

OF VIRGINIA

Part 5 The Supreme Court_

RULE 5:17 Petition for Appeal

(a) Time for Filing. - In every case in which the

appellate jurisdiction of this Court is invoked, a petition

for appeal must be filed with the clerk of this Court:

(1) in the case of an appeal direct from a

trial court, not more than three months after en-

try of the order appealed from; or

(2) in the case of an appeal from the Court

of Appeals, within 30 days after entry of the

judgment appealed from or a denial of a petition

for rehearing.

(b) Copy to Opposing Counsel. — At the time the

petition for appeal is filed, a copy of the petition shall be

_ served on counsel for the appellee.

(c) Form and Content. — Under a separate heading

entitled “Assignments of Error,” the petition shall list the

specific errors in the rulings below upon which the appel-

lant intends to rely. Only errors assigned in the petition ~

for appeal will be noticed by this Court. Where appeal is

taken from a judgment of the Court of Appeals, only

assignments of error relating to questions presented in, or

to actions taken by, the Court of Appeala-may be included

in the petition for appeal to this Court. An assignment of

error which merely states that the judgment or award is

contrary to the law and the evidence is not sufficient. If

the petition for appeal does not contain assignments of

error, the appeal will be dismissed.

App. 7

Under another separate heading entitled “Questions

Presented,” the petition shall list the questions upon

which the appellant intends to submit argument, with a

clear and exact reference to the particular assignment of

error to which each question ~elates.

Where appeal is taken from a judgment of the Court

of Appeals in a case where judgment is made final under

Code § 17.1-410, the petition for appeal shall contain a

statement setting forth in what respect the decision of the

Court of Appeals involves (1) a substantial constitutional

question as a determinative issue, or (2) matters of signifi-

cant precedential value. If the petition for appeal does not

contain such a statement, the appeal will be dismissed.

The petition also shall contain:

(1) A subject index and table of citations

with cases alphabetically arranged. Citations of

Virginia cases shall be to the Virginia Reports

and the Southeastern Reporter. Citations of all

authorities shall include the year thereof.

(2) A brief statement of the nature of the

case and of the material proceedings in the trial

court or commission in which the case originated.

This statement shall omit references to axy pa-

per filed or action taken that does not relate to

the assignments of error.

(3) A clear and concise statement of the

facts that relate to the assignments of error, with

references to the pages of the record, when there

is any possibility that the appellee may question

the statement. Any quotation from the record

should be brief. When the facts are in dispute,

the petition shall so state. The testimony of indi-

vidual witnesses should not be summarized

App. 8

seriatim. unless the facts are in dispute and such

a summary is necessary to support the appel-

lant’s version of the facts.

(4) The principles of law, the argument,

and the authorities relating to each assignment

of error. With respect to each assignment of error,

the principles, the argument, and the authorities

shall be stated in one place and not scattered

through the petition. At the option of counsel, the

argument may be preceded by a brief summary.

(5) A short conclusion stating the precise

relief sought.

Seven copies of the petition shall be filed. Carbon

copies are acceptable. Except by leave of a justice of this

Court, a petition for appeal shall not exceed 35 typed or 25

printed pages.

(d) Single Petition in Separate Cases. - Whenever

two or more cases were tried together in the court or

commission below, one petition for appeal may be used to

bring all such cases before this Court even though the

cases were not consolidated below by formal order.

(e) Required Certificate. — The appellant shall

include within the petition for appeal a certificate stating:

(1) the names of all appellants and appel-

lees, the names, addresses, and telephone num-

. bers of counsel for each party, and the address

and telephone number of any party not repre-

sented by counsel;

(2) that a copy of the petition for appeal

has been mailed or delivered on the date stated

therein to all opposing counsel and all parties not

represented by counsel;

App. 9

(3) in a criminal case, a statement whether

counsel for defendant has been appointed or pri-

vately retained; and

(4) whether he desires to state orally to a

panel of this Court the reasons why his petition

for appeal should be granted, and, if so, whether

he wishes to do so in person or by conference

telephone call.

(f) Filing Fee. — The petition must be accompanied

by a check or money order payable to the clerk of this

Court for the amount required by statute. The statutory

fee shall be due at the time such petition is presented. The

clerk of this Court may file any petition that is not accom-

panied by such fee if the fee is received by the clerk within

ten days of the date the petition for appeal is filed. If the

fee is not received within such time, the petition for appeal

shall be dismissed.

(g) Ora] Argument. - The appellant shall be entitled

to state orally, in person or by conference telephone call, to

a panel of this Court the reasons why his petition for

appeal should be granted. The appellant may waive the

right to oral argument on the petition for appeal before a

panel by notifying the clerk of this Court and opposing

counsel] in writing, or by filing a reply brief. If an appellant

is not represented by counsel and is incarcerated, the

petition for appeal may be considered by the Court without

oral argument.

App. 10

[SEAL]

SUPREME COURT OF VIRGINIA

PATRICIA H. KRUEGER, CLERK

SUPREME COURT BUILDING

100 NORTH 9TH STREET, 5TH FLOOR

RICHMOND, VIRGINIA 23219

(804) 786-2251 v/TDD

FAX: (804) 786-6249

DOUGLAS B. ROBELEN

CHIEF DEPUTY CLERK

January 12, 2005

Mr. Martin Byrd Quillen, Sr.

P.O. Box 145

Gate City, Virginia 24251-0145 z

Re: Martin Byrd Quillen, Sr. v. Christopher Raines, et al.

Record No. 050073

Dear Mr. Quillen:

This will acknowledge receipt on January 11, 2005, of your

petition for appeal in the above case. You enclosed a $25

check with your petition; however, as you paid a filing fee

in the Court of Appeals and this case was transferred, you

are not required to pay a second time. I am, therefore,

returning your check to you.

I understand the appellees in this case to be Easter P.

Moses, Esq., Charles H. Smith, III, Esq., and Christopher

Raines, et al. Although I recognize that this appeal is

specifically directed against Mr. Moses and Mr. Smith,

please confirm that the “et al.” is Moss Trucking Company.

Pursuant to this Court’s order of December 8, 2004, you

had 30 days within which to file your petition for appeal in

this case. Although you mailed your petition on January 7,

it does not appear that you sent it by certified or registered

App. 11

mail. If you did, please send me the certified/registered

mail receipt. For your information, I am enclosing a copy

of Rule 5:5, which addresses filing pleadings by mail.

Please make sure to mail a copy of your response to this

letter to opposing counsel.

Sincerely,

/s/ (Mlegible]

Douglas B. Robelen

Chief Deputy Clerk

Enclosure

App. 12

RULES OF THE SUPREME COURT OF VIRGINIA

Part 5 The Supreme Court

RULE 5:5. Extension of Time; Filing by Mail. -

(a) The times prescribed for filing the notice of

appeal (Rules 5:9(a), 5:14(a) and 5:21(c)), the transcript or

written statement (Rule 5:11), a petition for appeal (Rules

5:17(a) and 5:21(g)) and a petition for rehearing (Rules

5:20 and 5:39), are mandatory. A single extension not to

exceed thirty days may be granted if at least three judges

of the Court of Appeals concur in a finding that an exten-

sion for papers to be filed is warranted by the intervention

of some extraordinary occurrence or catastrophic circum-

stance which was unpredictable and unavoidable. The

time period for filing the notice of appeal is not extended

by the filing of a motion for a new trial, a petition for

rehearing, or a like pleading unless the final judgment is

modified, vacated, or suspended by the trial court pursu-

ant to Rule 1:1 or a petition for rehearing is filed in the

Court of Appeals. In any such case the time for filing shall

be computed from the date of final judgment entered

following such modification, vacation, or suspension, or

from the date the Court of Appeals refuses a petition for

rehearing or enters final judgment following the granting

of such a petition.

(b) Any document required to be filed with the clerk

of this Court, or filed in the office of the clerk of this Court,

shall be deemed to be timely filed if it is mailed postage

prepaid to the clerk of this Court by registered or certified

mail and if the official receipt therefor be exhibited upon

demand of the clerk or any party and it shows mailing

within the prescribed time limits. This rule does not apply

to documents to be filed in the office of the clerk of the

App. 13

trial court or clerk of the Industrial Commission or clerk of

the State Corporation Commission. .

(c) Inmate Filing. — A paper filed by an inmate

confined in an institution is timely filed if deposited in the

institution’s internal mail system with first-class postage

prepaid on or before the last day for filing. Timely filing of

a paper by an inmate confined in an institution may be

established by (1) an official stamp of the institution

showing that the paper was deposited in the internal mail

system on or before the last day for filing, (2) an official

postmark dated on or before the last day for filing, or (3) a

notarized statement signed by an official of the institution

showing that the paper was deposited in the internal mail

system on or before the last day for filing.

AMENDMENTS:

By order dated June 16, 2000, effective September 1,

2000, a new paragraph (c) was added.

Effective February 1, 2000, the second sentence in

subsection (a) was added.

App. 14

[LOGO] UNITED STATES

POSTAL SERVICE

January 18, 2005

Martin B Quillen, Sr.

P.O. Box 145

Gate City, VA 24251

Dear Mr. Quillen:

This is to advise that the attached receipt is an official

mail receipt from our Downtown Post Office (Bill 4

1000401581631 dated 01/07/05).

/s/ Shirley J. Karst

Shirley J Karst, General Clerk

U S POSTAL SERVICE

Enc

1001 N EASTMAN RD

KINGSPORT, TN 37664-9998

PHONE: 423-230-6308

Fax: 423-246-1600

App. 15

KINSPORT MAIN PO

KINGSPORT, Tennessee

376629998

4761480781-0096

01/07/2005 (423) 245-5111 04:01:27

Sales Receipt |

Product Sale Uni Final

Description Qty Price Price

RICHMOND VA 23219 $6.80

Priority Mail sss

Issue PVI: $6.80

ROANOKE VA 24022 $3.85

ll Sl Oa

Issue PVI: $3.85

ROANOKE VA 24011 $3.85

Priority Mail citeeiiiiiaaiiatdiia

Issue PVI: $3.85

KINSPORT TN 37664 $3.85

Priority Mail S2sscczs

Issue PVI: $3.85

Total: $18.35

Paid by:

Personal Check #2395 $18.35

Bill#: 1000401581631

Clerk: 07

All sales final on stamps and postage

Refunds for guaranteed services only

Thank you for your business

Customer Copy

App. 16 -

[SEAL]

SUPREME COURT OF VIRGINIA

PATRICIA H. KRUEGER, CLERK

SUPREME COURT BUILDING

100 NORTH 9TH STREET, 5TH FLOOR

RICHMOND, VIRGINIA 23219

(804) 786-2251 v/TpD

FAX: (804) 786-6249

DOUGLAS B. ROBELEN

CHIEF DEPUTY CLERK

January 25, 2005

Mr. Martin Byrd Quillen, Sr.

P.O. Box 145 ~

Gate City, Virginia 24251-0145

Re: Martin Byrd Quillen, Sr. v. Christopher Raines, et al.

Record No. 050073

Dear Mr. Quillen:

This will acknowledge receipt of your letter of January 19,

2005, regarding the above case. Your letter will be treated

as a motion for extension of time to file your petition for

appeal and will be referred to the Court for review.

Sincerely,

/s/ (Tllegible]

Douglas B. Robelen

Chief Deputy Clerk

DBR/srd

ce: Charles H. Smith, Esq.

Easter P. Moses, Esq. _

William T. Wray, Esq.

App. 17

IRGI :

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 18th

day of February, 2005.

Martin Byrd Quillen, Sr., Appellant,

against Record No. 050073

Circuit Court No. CL03-10

Christopher Raines et al., Appellees.

From the Circuit Court of Wythe County

On January 24, 2005 came the appellant, in proper

person, and filed a letter requesting that the petition for

appeal filed in the above-styled case be considered timely

filed. Upon consideration whereof, the Court denies the

request.

Finding that the appeal did not comply with this

Court’s order dated December 8, 2004, the Court dismisses

the petition for appeal filed in this case.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: /s/ Shaun A. [legible]

o- Deputy Clerk

App. 18

[SEAL]

SUPREME COURT OF VIRGINIA

PATRICIA H. KRUEGER, CLERK

SUPREME COURT BUILDING

100 NORTH 9TH STREET, 5TH FLOOR

RICHMOND, VIRGINIA 23219

(804) 786-2251 v/TDD

FAX: (804) 786-6249

DOUGLAS B. ROBELEN

CHIEF DEPUTY CLERK

March 8, 2005

Mr. Martin Byrd Quillen, Sr.

P.O. Box 145

Gate City, Virginia 24251-0145

Re: Martin Byrd Quillen, Sr. v. Christopher Raines, et al.

Record No. 050073

Dear Mr. Quillen:

This will acknowledge receipt of your petition for rehearing

in the above case. You filed hard copies of your petition;

however, as set forth in Rule 5:20A, a rehearing petition must

be filed electronically. Accordingly, please email to scvpfr@

courts.state.va.us a copy of your petition for rehearing and

appendix. If you cannot to file the pleading electronically,

then you will need to file a motion with the Court requesting

an exception to the electronic filing requirement. Please note

that your rehearing petition, which was sent by certified

mail on March 4, 2005, will be considered timely filed.

Sincerely,

/s/ Douglas B. Robelen

Douglas B. Robelen

Chief Deputy Clerk

App. 19

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 22nd

day of April, 2005.

Martin Byrd Quillen, Sr., Appellant,

against Record No. 050073

Circuit Court No. CL03-10

Christopher Raines et al., Appellees.

From the Circuit Court of Wythe County

On March 28, 2005 came the appellant, in proper

person, and filed a motion for exception to electronic filing

requirement with regard to the petition for rehearing filed

herein on March 8, 2005.

Upon consideration whereof, the Court grants the

motion.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: /s/ Douglas B. Robelen

Deputy Clerk

App. 20

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 17th

day of June, 2005.

Martin Byrd Quillen, Sr., Appellant,

against Record No. 050073

Circuit Court No. CL03-10

Christopher Raines et al., Appellees.

Upon a Petition for Rehearing

On consideration of the petition of the appellant to set

aside the judgment rendered herein on the 18th day of

February, 2005 and grant a rehearing thereof, the prayer

of the said petition is denied.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: /s/ (Megible] Edwards

Deputy Clerk

App. 21

ADDENDUM

PETITION FOR A WRIT OF CERTIORARI

This Addendum is to preserve the integrity of the

court record wherefore this Court could not analyze the

chronological order of events as occurred within the court

record without being knowledgeable of the following facts

and information.

Petitioner has not been notified to date of any order

having been issued by the Court in the matter of peti-

tioner’s certified letter dated January 19, 2005 which

letter was treated by the Court as a Motion for Extension

of Time to File Petition for Appeal for review by the ‘Court

(Appendix page 14).

Petitioner disavows any such letter dated January 24,

2005 was filed with the Court by the petitioner, pro se, as

claimed by the Court in court order dated February 18,

2005. The court order dated February 18, 2005 is in error

due to the non-existence of an alleged January 24, 2005

letter relied upon by the Court in its issuance of above

order (Appendix page 17). The erroneous court order dated

February 18, 2005 (Appendix page 17) appears, to this

Petitioner, as being the authority, upon which the Court

used in their determination of denying Petitioner’s Peti-

tion for Rehearing per Court order dated June 17, 2005

(Appendix page 20), wherefore due to the nonexistent

alleged letter dated January 24, 2005 referenced in the

February 18, 2005 court order would also cause the June

17, 2005 order to be in error.

No order has been receipted, to date, from the Court for

Petitioner’s January 19, 2005 letter classified by the Court

as a motion for ext« sion of time to file Petitioner’s Petition

for Appeal (Appendix page 16), nor was any subsequent

notice forwarded from the Court to the Petitioner that the

App. 22

Court’s classification of January 19, 2005 letter is anything

other than a motion for extension of time.

In the event Petitioner’s January 19, 2005 letter

mailed January 20, 2005 by U.S.P.O. Certified Mail .

Receipt #7003-2260-0001-9086-6691 and receipted by

Court on January 24, 2005 is alleged to be the letter the

Court refers to in court order dated February 18, 2005

(Appendix page 17) and Petitioner’s petition for rehearing

mailed on March 04, 2005 by U.S.P.0. Certified Mail

Receipt #7003-2260-0001-9086-6707 and receipted by

Court on March 08, 2005 wherefore the Court recognizes

the Chief Deputy Clerk, Douglas B. Robelen, letter dated

March 08, 2005 to Petitioner that the filing date is March

04, 2005 (Appendix page 18) however in court order dated

Friday the 22nd day of April, 2005 the Petition for Rehear-

ing filing date is designated as March 08, 2005 (Appendix

page 19) wherefore it appears, to this Petitioner, the

Virginia Supreme Court disregarded its own Rule~5:5(b)

(Appendix page 12) and allows a double standard to exist

when the above court orders reference dates of filing other

than the actual dates Petitioner mailed documents to the

court by U.S. Certified Mail subsequent to January 7,

2005 mailing of Petition for Appeal by U.S. Post Office

Priority Mail, U.S. Postal Service letter and official mail

receipt (Appendix page 14).

/s/ Martin Byrd Quillen, Sr.

MARTIN BYRD QUILLEN, SR.

PETITIONER

Pro Se

P.O. Box 145, Rt. #7

Gate City, Virginia 24251