Andujar v. USA

Filing 8

ORDER, setting response to 7 MOTION to Dismiss filed. (Responses due by 5/14/2012). Signed by Chief Judge Robert J. Conrad, Jr on 4/13/12. (Pro se litigant served by US Mail.)(com)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-604-RJC
(3:09-CR-153-RJC-2)
WILFREDO ANDUJAR,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER is before the Court on Respondent’s Motion To Dismiss filed March
29, 2012, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 7). In
accordance with Roseboro v.Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises
Petitioner, who is proceeding pro se, of his obligation to respond to Respondent’s Motion.
In order to survive a 12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted, Petitioner’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007). In the
context of a § 2255 proceeding, the factual allegations must be sufficient to allow the court to
draw the reasonable inference that 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.A. foll. § 2255. In considering Petitioner’s Motion to Vacate, the
court “‘need not accept [his] legal conclusions drawn from the facts,’ nor need it “‘accept as true
unwarranted inferences, unreasonable conclusions, or arguments.’” Philips v. Pitt County
Memorial Hospital, 572 F.3d 176, 179-80 (4th Cir.2009) (quoting Kloth v. Microsoft Corp., 444
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F.3d 312, 319 (4th Cir. 2006).
Petitioner is further advised that the Court may take judicial notice of matters of public
record, and may consider documents attached to the Motion to Vacate as well as those attached
to the Rule 12(b)(6) motion to dismiss, so long as those documents “are integral to
the complaint and authentic.” Philips, supra, at 180 (citing Blankenship v. Manchin. 471 F.3d
523, 526 n.1 (4th Cir. 2006). Petitioner is advised, however, that if he chooses to file documents,
affidavits, or declarations in opposition to Respondent’s 12(b)(6) motion, such action may result
in the conversion of Respondent’s motion into a motion for summary judgment under Rule 56 of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d).
IT IS, THEREFORE, ORDERED that Petitioner shall have thirty (30) days from the
entry of this Order to file his response to Respondent’s Motion to Dismiss his Section 2255
Petition. (Doc. No. 7). Petitioner’s failure to respond may result in the Court granting the relief
sought by Respondent, that is, in the dismissal of the Motion to Vacate.
The Clerk of Court is directed to send copies of this Order and Notice to the parties.

Signed: April 13, 2012

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