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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0740%3A1. Public record. Not legal advice.