Hills v. Cain et al

Filing 15

ORDER: Within 14 days the parties shall submit affidavits, documents, or other evidence to establish when the petitioner delivered his writ of review to a prison officer. Affidavits may include those of the petitioner as well as those of prison offic ials; documentary evidence may include draw slips for postage, mail logs, post office receipts, or similar documents. The court may require the parties to present oral testimony at an evidentiary hearing if the affidavits and documentary evidence are not sufficient to make a determination.A party's failure to timely respond to this order may result in a determination adverse to that party's position. Signed by Magistrate Judge Stephen C. Riedlinger on 11/19/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RICKEY HILLS (#197158)
VERSUS

CIVIL ACTION

N. BURL CAIN, ET AL

NUMBER 14-16-JWD-SCR
ORDER TO SUPPLEMENT RECORD

Before the court on the Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody filed by
Rickey Hills.
Rickey Hills was found guilty of one count of possession of
cocaine in the Nineteenth Judicial District Court for East Baton
Rouge

Parish,

Louisiana

on

March

24,

2009.

Petitioner

was

adjudicated a fifth felony habitual offender and was sentenced to
a term of 54 years imprisonment at hard labor without the benefit
of probation or suspension of sentence.
On

direct

appeal

the

petitioner

asserted

the

following

assignments of error:
1.

His habitual offender adjudication was invalid.

2.

He received an excessive sentence.

The Louisiana First Circuit Court of Appeal affirmed the
petitioner’s
sentence.

conviction,

habitual

offender

adjudication,

and

State of Louisiana v. Rickey Earl Hills, 2010-0910 (La.

App. 1st Cir. 10/29/10), 56 So.3d 464 (Table).

Petitioner sought review in the Louisiana Supreme Court.1 The
certificate of service is dated November 29, 2010, the envelope in
which it was mailed is postmarked December 1, 2010, and it was
filed on December 6, 2010.2

The Louisiana Supreme Court denied

review on October 14, 2011.

State ex rel. Ricky Earl Hills v.

State of Louisiana, 2010-2688 (La. 10/14/11), 74 So.3d 1189.
In its Answer to Petition For Writ of Habeas Corpus3 the State
argued that the petition is untimely.

Specifically, the State

argued that the petitioner did not file a timely application for
review with the Louisiana Supreme Court. The State argued that La.
S.Ct. Rule X Section 5 requires all writ applications to be filed
within 30 days of the mailing of the appellate court’s judgment.
The State argued that the petitioner did not deliver his pleadings
to prison officials for mailing to the Louisiana Supreme Court
within 30 days after October 29, 2010.
First, the State argued that the petitioner had until November
28, 2010 to seek review.

This argument is unpersuasive.

The

statutory tolling ended on November 28, 2010, which was a Sunday.
Thus, the time period was extended to the next business day for the
court, which was Monday, November 29, 2010.

1

Record document number 11, State Court Record, Ancillary
Volume.
2

Id.

3

Record document number 8.
2

Second, the State argued that although the certificate of
service is dated November 29, 2010, the post-mark on the envelope
established that the pleading was not mailed until December 1,
2010.
Under the prison mailbox rule, a prisoner’s pleading is deemed
to have been filed on the date that the pro se prisoner submits the
pleading to prison authorities for mailing.

Stoot v. Cain, 570

F.3d 669, 671 (5th Cir. 2009); Causey v. Cain, 450 F.3d 601, 604
(5th Cir. 2006) (citing Houston v. Lack, 487 U.S. 266, 270-71, 108
S.Ct.

2379

(1988).

When

the

petitioner

submitted

application to prison officials is not clear.
certificate

of

service

is

dated

November

29,

his

writ

Although the
this

does

not

necessarily mean that the petitioner gave it to a prison officer on
that date.
Therefore;
IT IS ORDERED that within 14 days the parties shall submit
affidavits, documents, or other evidence to establish when the
petitioner delivered his writ of review to a prison officer.
Affidavits may include those of the petitioner as well as those of
prison officials; documentary evidence may include draw slips for
postage, mail logs, post office receipts, or similar doucments.
The court may require the parties to present oral testimony at an
evidentiary hearing if the affidavits and documentary evidence are
not sufficient to make a determination.

3

A party’s failure to timely respond to this order may result
in a determination adverse to that party’s position.
Baton Rouge, Louisiana, November 19, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4