Mosley v. USA

Filing 22

ORDER denying 13 Motion to Grant Section 2255Motion ; denying 16 Motion to Dismiss ; denying 18 Motion to Dismiss the Indictment for VindictiveProsecution and Prosecutorial Misconduct ; denying 19 Motion for Entry of Default; denying 20 Motion to Consolidate Motions. Signed by District Judge Max O. Cogburn, Jr on 11/14/2014. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00399-MOC
ANTONIO MOSELY,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s Motion to Grant Section 2255
Motion (#13), Motion to Dismiss (#16), Motion to Dismiss the Indictment for Vindictive
Prosecution and Prosecutorial Misconduct (#18), Motion to Dismiss By Default (#19), and
Motion to Consolidate Motions (#20).
Among other reasons, petitioner primarily argues that the government’s yet-to-be filed
response should be dismissed, his petition granted, and the indictment dismissed because the
government failed to file its last motion for extension of time before the time previously allowed
expired. Petitioner is correct that the government filed its second motion for extension of time a
day late; however, petitioner is wrong that such misstep results in default or entitles him to any
relief. In fact, long-settled law provides that the law strongly disfavors motions for default.
Tazco, Inc. v. Dir., Office of Workers Comp. Program, 895 F.2d 949, 950 (4th Cir. 1990).
Indeed, “[t]he harsh entry of default is not proper if the mistake was inadvertent, quickly
reconciled, and the opposing party suffered no prejudice.” Harris v. Ann's House of Nuts, 2013
WL 5592936, * 2 (E.D.N.C. Oct. 10, 2013). It is readily apparent from the motion that good

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cause for such one-day delay exists under Rule 6(b)(1)(B), Fed.R.Civ.P., as present counsel for
the government took over the case after the departure from employment of another attorney,
making the one day delay reasonably excusable. Despite petitioner’s multiple filings, he has not
shown how such delay in any manner caused him prejudice.

ORDER
IT IS, THEREFORE, ORDERED that petitioner’s Motion to Grant Section 2255
Motion (#13), Motion to Dismiss (#16), Motion to Dismiss the Indictment for Vindictive
Prosecution and Prosecutorial Misconduct (#18), Motion to Dismiss By Default (#19), and
Motion to Consolidate Motions (#20) are DENIED.

Signed: November 14, 2014

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