Robinson v. USA

Filing 9

ORDER that on or before thirty (30) days from the entry of this Order, the Petitioner may file response, including any evidence, to the Respondents Motion for Summary Judgment. Signed by District Judge Martin Reidinger on 6/5/10. (Pro se litigant served by US Mail.)(siw)

UNITED STATES DISTRICT COURT FOR THE W E S TE R N DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C ivil Case No. 1:09cv473-3 [C rim in a l Case No. 1:07cr32]

D AR IAN KENDELL ROBINSON,

) ) P e t it io n e r , ) ) v. ) ) U N ITE D STATES OF AMERICA ) ) R e s p o n de n t. ) ________________________________)

ORDER

TH IS MATTER is before the Court on the Respondent's Motion for S u m m a ry Judgment [Doc. 8]. T h e Court has conducted a careful review of the Respondent's motion a n d finds that the Respondent may be entitled to a judgment as a matter of la w. In view of the Petitioner's pro se status, the Court therefore provides n o tic e to him, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), o f the heavy burden that he carries in responding to Respondent's Motion. T h e Federal Rules of Civil Procedure provide: W h e n a motion for summary judgment is properly made and s u p p o rte d , an opposing party may not rely merely on allegations o r denials in its own pleading; rather, its response must ­ by a ff id a v its or as otherwise provided in this rule ­ set out specific

facts showing a genuine issue for trial. If the opposing party does n o t so respond, summary judgment should, if appropriate, be e n te re d against that party. F e d . R. Civ. P. 56(e)(2). This language means that if the Petitioner has any evidence to offer to show th a t there is a genuine issue for resolution, he must now present it to this C o u rt in a form which would otherwise be admissible at trial; that is, in the fo rm of affidavits or unsworn declarations. An affidavit is a written statement s wo rn to before a notary public, and "must be made on personal knowledge, s e t out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1). An u n s wo rn statement, made and signed under the penalty of perjury, also may b e submitted. Affidavits or unsworn statements must be presented by the Petitioner to this Court within thirty (30) days of the entry of this Order. Pursuant to Rule 5 6 (e )( 2 ) , the Petitioner's failure to respond may result in the granting of the R e s p o n d e n t's Motion for Summary Judgment; that is, in the dismissal of this M o tio n to Vacate with prejudice.

IT IS, THEREFORE, ORDERED that on or before thirty (30) days from th e entry of this Order, the Petitioner may file response, including any e vid e n c e , to the Respondent's Motion for Summary Judgment.
Signed: June 5, 2010