Johnson v. USA

Filing 6

ORDER and NOTICE re 5 MOTION to Dismiss, ( Responses due by 7/14/2011) Petitioners failure to respond may result in the granting of the Respondents Motion to Dismiss and the dismissal with prejudice of the Petitioners Motion to Vacate. Signed by District Judge Martin Reidinger on June 14, 2011. (Pro se litigant served by US Mail.)(jhg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:11cv45
[Criminal Case No. 1:09cr13-11]

MICHAEL WARREN JOHNSON, )
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
___________________________ )

ORDER and NOTICE

THIS MATTER is before the Court on the Respondent’s Motion To
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
[Doc. 5].
In accordance with Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975), the Court advises the Petitioner, who is proceeding pro se, of the
heavy burden that he carries in responding to the Respondent’s Motion. In
responding to a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be granted, the
Petitioner must show that he has made sufficient factual allegations to support
a cause of action which is recognized by law. See Ashcroft v. Iqbal,

U.S.

, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555–56, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual
allegations must be enough to raise a right to relief above the speculative
level.") (citation omitted); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010). In the context of a § 2255 proceeding, the factual allegations
must be sufficient to allow the court to draw the reasonable inference that the
Petitioner is in custody under a judgment that is subject to collateral attack on
one or more of the grounds set forth in the Rules Governing Section 2255
Proceedings, Rule 1, 28 U.S.C. § 2255.
In considering a motion to dismiss, a court need not accept a petitioner's
legal conclusions drawn from the facts.

Iqbal, 129 S.Ct. at 1949–50.

Similarly, a court “need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Kloth v. Microsoft Corp., 444 F.3d
312, 319 (4th Cir. 2006)) (citation and internal quotation marks omitted).
Moreover, a court may take judicial notice of its own records and
proceedings without converting a motion to dismiss to a motion for summary
judgment. See e.g., Fed.R.Evid. 201; Philips v. Pitt Cnty. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009) (citations omitted). The Petitioner is advised,
however, that if he chooses to file documents, affidavits, or declarations in
opposition to the Respondent’s Motion to Dismiss, such action may result in

the conversion of the Motion to Dismiss to a motion for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
IT IS, THEREFORE, ORDERED that the Petitioner has thirty (30) days
from the entry of this Order to file his response, if any, to the Motion to
Dismiss. Petitioner’s failure to respond may result in the granting of the
Respondent’s Motion to Dismiss and the dismissal with prejudice of the
Petitioner’s Motion to Vacate.
Signed: June 14, 2011