SHNEWER v. UNITED STATES OF AMERICA

Filing 28

MEMORANDUM AND ORDER that Mr. Fitzpatrick's Declaration (Dkt. No. 10-1 at p.1-3) is stricken from the record and will not be considered in analyzing petitioner's 2255 Motion. ORDERED that Respondent shall have 21 days in which to submit a declaration that complies with 28 U.S.C. 1746 should it elect to do so. Signed by Judge Robert B. Kugler on 1/22/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MOHAMAD IBRAHIM SHNEWER,
:
:
Petitioner,
:
Civ. No. 13-3769 (RBK)
:
v.
:
MEMORANDUM AND ORDER
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_________________________________________ :
Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. Among his claims, petitioner asserts that trial
counsel was ineffective in failing to communicate to him that the prosecutors had raised the
possibility of a guilty plea.
Respondent has submitted a declaration from William E. Fitzpatrick, the lead prosecutor
during petitioner’s criminal trial in its response. Title 28 of the United States Code § 1746 states
as follows:
Wherever, under any law of the United State or under any rule,
regulation, order, or requirement made pursuant to law, any matter
is required or permitted to be supported, evidenced, established, or
proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making the
same (other than a deposition, or an oath of office, or an oath
required to be taken before a specified official other than a notary
public), such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
....
(2) If executed within the United States, its territories, possessions,
or commonwealths: “I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct. Executed
on (date).

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28 U.S.C. § 1746. Thus, under the statute, unsworn declarations are permissible if they conform
to § 1746’s requirement that the declarant states that the contents of his declarations are true,
subject to penalty of perjury. See Phillis v. Harrisburg Sch. Dist., 430 F. App’x 118, 122 (3d
Cir. 2011) (citing FED. R. CIV. P. 56(c); Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 323 (3d
Cir. 2005)).
In this case, while Mr. Fitzpatrick’s declaration refers to § 1746 and he states that the
statements in his declaration are true to the best of his knowledge, his declaration does not
specifically state that it is made under penalty of perjury as petitioner notes in his reply. (See
Dkt. No. 12 at p. 14-15.) Therefore, his declaration, as is, will not be considered by this Court
and will be struck. See Franklin Mut. Ins. Co. v. Broan-Nutone, LLC, No. 10-4845, 2014 WL
2920622, at *2 (D.N.J. June 27, 2014) (stating that court will not consider certification on
grounds that it failed to conform to the requirements of 28 U.S.C. § 1746) (citing Phillis, 430 F.
App’x at 122); Bond v. Taylor, No. 07-6128, 2009 WL 2634627, at *2 (D.N.J. Aug. 24, 2009)
(“Courts in the District of New Jersey have held that language that omits the phrase ‘under
penalty of perjury’ are inadequate under 28 U.S.C. § 1746.”) (citing Cooper v. Cape May Cnty.
Bd. of Soc. Servs., 175 F. Supp. 2d 732, 742 n.6 (D.N.J. 2001); United States v. Branella, 972 F.
Supp. 294, 300 (D.N.J. 1997)). Nevertheless, respondent shall be given the opportunity to
correct this deficiency by submitting a declaration from Mr. Fitzpatrick that complies with §
1746’s requirement that the declaration be sworn under penalty of perjury.
Accordingly, IT IS on this 22nd day of January, 2015,
ORDERED that Mr. Fitzpatrick’s declaration (Dkt. No. 10-1 at p. 1-3.) is stricken from
the record and will not be considered in analyzing petitioner’s § 2255 motion because it does not
comply with 28 U.S.C. § 1746; and it is further

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ORDERED that respondent shall have twenty-one (21) days in which to submit a
declaration from Mr. Fitzpatrick that complies with 28 U.S.C. § 1746 should it elect to do so.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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