Olton v. USA

Filing 12

ORDER, Set Deadlines as to 10 MOTION for Summary Judgment filed.(Responses due by 6/14/2010.). Signed by District Judge Martin Reidinger on 5/13/2010. Copy of order mailed to pro se petitioner.(bsw)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H AR L O TTE DIVISION CIVIL CASE NO. 3:08cv516-1 (C R IM IN AL CASE NO. 3:03cr127)

R IC H AR D OLTON,

) ) P e t it io n e r , ) ) v. ) ) U N IT E D STATES OF AMERICA, ) ) R e s p o n d e n t. ) _______________________________ )

ORDER

TH IS MATTER is before this Court upon a Petition pursuant to 28 U .S .C . § 2255. [Doc. 1]. The Government has filed a Response to

P e titio n e r 's § 2255 Petition [Doc. 9] as well as a Motion for Summary J u d g m e n t [Doc. 10], and it appears that the Government may be entitled to s u m m a r y judgment as a matter of law. In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), th e Petitioner, who is proceeding pro se, is cautioned that he carries a heavy b u rd e n in responding to a motion for summary judgment. Rule 56(e) reads, in pertinent part, as follows: W h e n a motion for summary judgment is properly m a d e and supported, an opposing party may not rely m e re ly on allegations or denials in its own pleading;

ra th e r, its response must ­ by affidavits or as o th e rwis e provided in this rule ­ set out specific facts s h o win g a genuine issue for trial. If the opposing p a rty does not so respond, summary judgment s h o u ld , if appropriate, be entered against that party. F e d . R. Civ. P. 56(e)(2). T h is rule requires that if the Petitioner has any evidence to offer to c o u n te r the evidence contained in the Government's Response and Motion fo r Summary Judgment, he must present it to the Court in a form that would o th e r wis e be admissible at trial, i.e., in the form of affidavits or unsworn d e c la ra tio n s . An affidavit is a written statement made under oath; that is, a s t a te m e n t prepared in writing by the Petitioner and sworn before a Notary P u b lic . If the Petitioner chooses, he may instead submit an unsworn

d e c la ra tio n and state the following with the date and his signature: "I declare under penalty of perjury that the foregoing is true and correct." P E TITIO N E R OLTON READ THIS: The Petitioner is hereby advised that h e has thirty (30) days from the entry of this Order in which to file evidence in a form which would otherwise be admissible at trial, i.e., in the form of a ffid a vits or declarations, in opposition to the Government's Response to P e titio n e r's § 2255 Petition and Motion for Summary Judgment. FAILURE

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TO RESPOND WITHIN THIS TIME PERIOD MAY SUBJECT THIS AC TIO N TO SUMMARY JUDGMENT. IT IS, THEREFORE, ORDERED that the Petitioner has thirty (30) d a ys from the entry of this Order in which to provide his own evidence in a fo rm which would otherwise be admissible at trial, i.e., in the form of a ffid a vits or declarations, countering the evidence offered by the G o ve rn m e n t's Response to Petitioner's § 2255 Petition and Motion for S u m m a ry Judgment. IT IS SO ORDERED.
Signed: May 13, 2010

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