Foster v. USA

Filing 2

ORDER that the Petitioner shall have (20) days from entry of this Order in which to resubmit the petition signed under penalty of perjury. Upon receipt of the petition with Petitioner's signature under penalty of perjury, the Court will direct the United States to respond. Signed by District Judge Max O. Cogburn, Jr on 9/21/2017. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-118-MOC
(5:13-cr-53-MOC-DCK-3)
DANIEL LEE FOSTER,

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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 Petitioner’s Motion under 28, United States
Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody,
(Doc. No. 1).
I.

Initial Screening
The Court has conducted an initial screening of the petition under the Rules Governing §

2255 Proceedings, Rule 4(b) 28 U.S.C.A. foll. § 2255, and finds: (1) the petition has not been
signed under penalty of perjury, Rule 2(b)(5), 28 U.S.C.A. foll. § 2255; (2) Petitioner has provided
indicia that the petition was timely filed, see § 2255(f); and (3) Petitioner has asserted a colorable
claim for relief cognizable under § 2255(a).1 Petitioner shall have twenty (20) days in which to
resubmit the petition signed under penalty of perjury. If Petitioner fails to do so, the petition will

Petitioner’s original motion to vacate was filed as Docket No. 447 in his underlying criminal
case, seeking sentencing relief in light of the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551, 2563 (2015). See (Crim. Case No. 5:13-cr-53-MOC-DCK-3).
Following this Court’s Castro notice, Petitioner indicated that he intends for the Court to
construe his filing as a Section 2255 motion to vacate. See (Id., Doc. Nos. 461, 463, 465, 467).
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be subject to dismissal without further notice. Upon receipt of the petition with Petitioner’s
signature under penalty of perjury, the Court will direct the United States to respond.
IT IS, THEREFORE, ORDERED that Petitioner shall have twenty (20) days from entry
of this Order in which to resubmit the petition signed under penalty of perjury. If Petitioner fails
to do so, the petition will be subject to dismissal without further notice.
Furthermore, the Clerk is respectfully instructed to mail Petitioner a Section 2255 form
with this Order so that Petitioner may reassert his allegations on the form if he so wishes.

Signed: September 21, 2017

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