Hinton v. The State of Mississippi et al

Filing 53

ORDER ADOPTING REPORT AND RECOMMENDATIONS. FURTHER ORDERED that the Clerk of this Court is directed to return this case to the Fifth Circuit Court of Appeals for further proceedings as may be appropriate. Signed by Honorable David C. Bramlette, III on 9/13/17 (MGB) (NEF AND ORDER MAILED TO PLAINTIFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.
VS.

PETITIONER
CIVIL ACTION NO. 5:16-cv-15(DCB)(MTP)

SHELTON JOLLIFF

DEFENDANT
ORDER

This cause is before the Court on Order of the Fifth Circuit
Court

of

Appeals,

directing

the

Court

to

determine

if

the

petitioner, Henry Hinton, Jr., filed his notice of appeal within
thirty days from entry of judgment.

Also before the Court is a

Report and Recommendation of Magistrate Judge Michael T. Parker
(docket entry 52).
This Court entered its Final Judgment on December 12, 2016;
therefore, the final day for filing a timely notice of appeal was
January 11, 2017.

The certificate of service attached to the

petitioner’s pro se notice of appeal is dated December 21, 2016,
and the notice of appeal is stamped as filed on January 17, 2017.
A prisoner’s pro se notice of appeal is timely filed if it is
deposited in the correctional institution’s mail system on or
before the last day for filing.

In this case, the petitioner was

required to file his notice of appeal on or before January 11,
2017.
Magistrate Judge Michael T. Parker issued an Order (docket
entry 49) requesting the parties to show evidence to establish when
the petitioner deposited his Notice of Appeal in the institution’s

internal mail system.
McIntyre,

Inmate

The Affidavit (docket entry 51) of Kathryn

Legal

Assistance

Program

technician

at

the

Mississippi State Penitentiary, states that mail services were
rendered to the petitioner on January 5, 2017, for a deadline. The
Affidavit also includes a mail log for the plaintiff which reflects
that Hinton’s Notice of Appeal / Motion to Reconsider was deposited
in the correctional institution’s mail system for mailing to the
Fifth Circuit Court of Appeals and to this Court on January 5,
2017.

The petitioner’s Response (docket entry 50) also reflects

that he placed the mailings with the correctional institution’s
mail system on January 5, 2017.
On September 11, 2017, Magistrate Judge Parker entered his
Report and Recommendation finding that the petitioner delivered his
Notice of Appeal to prison officials on January 5, 2017.
The Court therefore finds that the petitioner deposited his
Notice of Appeal in the correctional institution’s internal mail
system on January 5, 2017, and said Notice of Appeal was therefore
timely filed. Because the parties are in agreement that the Notice
of Appeal was timely filed, the Court finds that they have waived
any objections to the Report and Recommendation.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Michael T. Parker (docket entry 52) is ADOPTED as
the findings and conclusions of this Court;

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FURTHER ORDERED that the Clerk of this Court is directed to
return this case to the Fifth Circuit Court of Appeals for further
proceedings as may be appropriate.
SO ORDERED, this the 13th day of September, 2017

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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