Owens v. USA

Filing 15

ORDER denying 8 Motion for Entry of Default; denying 9 Motion for Default Judgment. Signed by District Judge Martin Reidinger on 09/10/11. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:10cv260
[Criminal Case No. 1:08cr25]

CARROL LEE OWENS,

)
)
Petitioner,
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v.
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)
UNITED STATES OF AMERICA,
)
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Respondent.
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________________________________)

ORDER

THIS MATTER is before the Court upon the Petitioner’s Motion to
Amend his 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct
Sentence. [Doc. 3]. Also before the Court are the Petitioner’s Motion for
Entry of Default Judgment [Doc. 8] and Motion for Default Judgment [Doc.
9].
On February 7, 2008, the Petitioner was charged in an eight-count bill
of indictment with aggravated identity theft, larceny, bank fraud, and
property damage. [Criminal Case No. 1:08cr25, Doc. 1]. The indictment
was superseded in April 2008 to add a conspiracy charge. [Id. at Doc. 13].
On May 5, 2008, the Petitioner entered into a plea agreement with the
Government pursuant to which he agreed to plead guilty to one count of

bank fraud and one count of aggravated identity theft. [Id. at Doc. 19]. His
plea was entered and accepted by the Magistrate Judge on May 5, 2008.
[Id. at Doc. 21]. The Petitioner was sentenced on November 24, 2008 to a
total of 48 months’ imprisonment. [Id. at Doc. 56].
The Petitioner appealed, and on December 31, 2009, the United
States Fourth Circuit Court of Appeals affirmed his convictions and
sentences. United States v. Owens, 358 F. App’x 468 (4th Cir. 2009). The
Petitioner filed a timely Motion to Vacate, Set Aside, or Correct Sentence
on November 4, 2010. [Doc. 1]. The Petitioner subsequently filed a Motion
to Amend to add two claims to his § 2255 motion. [Doc. 3].
A party may amend his pleading once as a matter of course within 21
days after serving it. Fed. R. Civ. P. 15(a)(1)(A). Petitioner filed his Motion
to Amend [Doc. 3] less than 21 days after he filed his Motion to Vacate
[Doc. 1]. His Motion, therefore, falls within the time that he may amend his
pleading without leave of the Court or the Respondent. See Fed. R. Civ. P.
15(a).
The Petitioner has also filed a Motion for Entry of Default Judgment
[Doc. 8] and Motion for Default Judgment [Doc. 9], contending that he is
entitled to judgment because the Government had failed to respond to his

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Motion to Vacate within the time ordered by the Court. “A default judgment
may be entered against the United States ... only if the claimant establishes
a claim or right to relief by evidence that satisfies the court.” Fed. R. Civ.
P. 55(d). Here, the Petitioner is not entitled to a default judgment because
he has not established a right to relief. Contrary to the Petitioner’s
assertion, the Government filed its Response to the Petitioner’s Motion to
Vacate within the time ordered by the Court. [See Doc. 6].
IT IS, THEREFORE, ORDERED that the Petitioner’s Motion to
Amend [Doc. 3] is GRANTED as a matter of course pursuant to Rule 15(a)
of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Petitioner’s Motion for Entry of
Default Judgment [Doc. 8] and Motion for Default Judgment [Doc. 9] are
DENIED.
IT IS SO ORDERED.
Signed: September 10, 2011

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