Ragin v. USA

Filing 29

ORDER denying 5 Motion for Judgment on the Merits; denying 25 Motion to Amend/Correct and Motion to Stay; granting 27 Motion to Amend/Correct (deemed to be a Motion to Supplement Response); denying 28 Motion for Judgment on the Pleadings. Signed by Chief Judge Robert J. Conrad, Jr on 3/2/2012. (Pro se litigant served by US Mail.) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10-cv-488-RJC
NICHOLAS RAGIN,
Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________

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ORDER

THIS MATTER is before the court on the following motions filed by Petitioner:
(1)

Motion for Judgment on the Merits (Doc. No. 5);

(2)

Motion to Stay and Motion to Amend/Correct Motion to Vacate/Set Aside/Correct
Sentence (2255) (Doc. No. 25);

(3)

Motion to Amend Motion to Vacate/Set Aside/Correct Sentence (2255) (Doc. No.
27); and

(4)

Motion for Judgment on the Pleadings (Doc. No. 28).

The Court has carefully considered each motion as well as the other pleadings of record. The court
enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
The Motion for Judgment on the Merits was filed before cross motions for summary
judgment were filed by the parties. Such motion will, therefore, be denied as premature.
The Motion to Stay and Motion to Amend/Correct Motion to Vacate/Set Aside/Correct
Sentence (2255) (Doc. No. 25) seeks a stay of the action so that petitioner can secure affidavits from
the trial judge and jurors concerning his allegation that he received ineffective assistance of counsel
because his counsel fell asleep during trial. To the extent Petitioner seeks leave to amend his
petition to add a claim based on trial counsel falling asleep, that claim is adequately raised in the
petition and addressed by Respondent in its Response, (Doc. No. 15 at 24). To the extent Petitioner
seeks a stay to secure affidavits concerning others observing counsel sleeping, review of subsequent

pleadings indicates that Petitioner actually secured a statement from a juror, which he considers to
be an affidavit. As the inquiry on summary judgment does not involve weighing evidence as to
whether counsel fell asleep, but whether Petitioner can show that such alleged behavior prejudiced
the presentation of his defense, the motion will be denied.
The Motion to Amend Motion to Vacate/Set Aside/Correct Sentence (2255) (Doc. No. 27)
seeks not to amend the claims of the petition, but to provide the Court with additional arguments and
evidence that has been annexed to such motion. The Court will, therefore, deem such motion to be
a Motion to Supplement Response and allow the request. Respondent will be allowed to file a reply
to such supplement within 14 days. Petitioner is advised that he need take no further action to place
such supplemental materials and arguments before the Court, and that the pleadings will close with
Respondent’s Reply, if any.
Finally, in the Motion for Judgment on the Pleadings (Doc. No. 28), petitioner seeks to bring
to the Court’s attention the fact that the cross motions for summary judgment have been ripe for
decision since July 19, 2011. The Court has noted such and will issue its decision within a
reasonable time after the filing of Respondent’s Reply (or the passage of such deadline).
IT IS, THEREFORE, ORDERED that Petitioner’s
1.

Motion for Judgment on the Merits (Doc. No. 5) is DENIED as premature;

2.

Motion to Stay and Motion to Amend/Correct Motion to Vacate/Set Aside/Correct
Sentence (2255) (Doc. No. 25) is DENIED;

3.

Motion to Amend Motion to Vacate/Set Aside/Correct Sentence (2255) (Doc. No.
27) is DEEMED to be a Motion to Supplement Response and is ALLOWED.
Respondent is GRANTED leave, but is not required, to file a Reply to such
supplement within 14 days; and

4.

Motion for Judgment on the Pleadings, (Doc. No. 28), is DENIED.

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Signed: March 2, 2012

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