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)

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.,

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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________ )

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.
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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

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