Bell v. USA

Filing 7

ORDER for Petitioner to respond re 6 MOTION to Dismiss Motion to Vacate, Correct or Set Aside Conviction and Sentence, ( Responses due by 1/3/2017 plus an additional 3 days if served by mail). Signed by District Judge Max O. Cogburn, Jr on 12/19/2016. (Pro se litigant served by US Mail.)(chh)

Download PDF
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:16-cv-593-MOC (3:12-cr-294-MOC-DCK-1) DAVID WAYNE BELL, JR., ) ) Petitioner, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ___________________________________ ) ORDER THIS MATTER is before the Court on its own motion following the filing of the Government’s Motion to Dismiss on December 13, 2016, (Doc. No. 6). The Court notifies Petitioner that, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner has a right to respond to the Government’s motion to dismiss.1 The Court also advises Petitioner that failure to respond may result in dismissal of the petition. IT IS, THEREFORE, ORDERED that: 1. Petitioner shall respond to the pending Motion to Dismiss, (Doc. No. 6), no later 1 The Fourth Circuit did not hold in Roseboro that such notice is required for motions to dismiss. Rather, the Fourth Circuit’s discussion in Roseboro regarding notice was directed to summary judgment motions. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (“We agree with the plaintiff, however, that there is another side to the coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.”); see also Norman v. Taylor, 25 F.3d 1259, 1261 (4th Cir. 1994) (“In Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), this circuit held that pro se plaintiffs must be advised that their failure to file responsive material when a defendant moves for summary judgment may well result in entry of summary judgment against them.”). Nevertheless, courts routinely issue Roseboro notices for motions to dismiss, and the Court does so here. 1 than fourteen (14) days from entry of this Order. Failure to file a timely and persuasive response will likely lead to the dismissal of this action. Signed: December 19, 2016 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?