Bello v. Entzel

Filing 19

ORDER DENYING PETITIONERS 14 MOTION TO STAY AS MOOT, DIRECTING RESPONDENT TO RESERVE HIS MOTION TO DISMISS OR ALTERNATIVELY FOR SUMMARY JUDGMENT AND ISSUING ROSEBORO NOTICE re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION fo r Summary Judgment filed by Entzel. Within 60 days from the date of this Order, the pro se party shall file any opposition to the motion. Signed by Magistrate Judge James P. Mazzone on 11/14/18. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 11/14/2018: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALEJANDRO BELLO,
Petitioner,
v.

Civil Action No. 2:18cv59
(Judge Bailey)

ENTZEL, Warden,
Respondent.
ORDER DENYING PETITIONER’S MOTION TO STAY AS MOOT,
DIRECTING RESPONDENT TO RESERVE HIS MOTION TO DISMISS OR
ALTERNATIVELY FOR SUMMARY JUDGMENT AND
ISSUING ROSEBORO NOTICE
Currently pending before the court, is the Petitioner’s Motion requesting the Court
to stay this mater 60 days while he is in transit. The Motion was filed on October 12,
2018, and on November 13, 2018, the Petitioner filed a change of address indicating
that he is now housed at FCI Terre Haute. Accordingly, the Petitioner’s Motion to Stay
[ECF No. 14] is DENIED AS MOOT.
On October 19, 2018, the Respondent filed a Motion to Dismiss or, alternatively
for Summary Judgment. On October 30, 2018, the Respondent filed a Notice that the
Motion and supporting memorandum which has been mail to the Petitioner at FCI
Hazelton had been returned as undeliverable. The Petitioner having now informed the
Court of his new address, the Respondent is hereby ORDERED to resend his Motion
and memorandum to the Petitioner at his current address.
Rule 12 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that the Federal Rules of Civil Procedure are applicable to proceedings
under 28 U.S.C. ' 2254 to the extent that they are not inconsistent with any statutory
provisions or the Rules Governing Section 2254 Cases. Rule 1(b) provides that the

district court may apply any or all of the Rules governing ' 2254 cases to a habeas
petition other than a ' 2254. Thus, generally, the summary judgment procedures, as
stated in Rule 56 of the Federal Rules of Civil Procedure, may be applied in all habeas
cases, including those filed under ' 2241. See Blackledge v. Allison, 431 U.S. 63, 80
(1977); Maynard v. Dixon, 943 F.2d 407 (4th Cir. 1991).
Petitioner is NOTIFIED that, pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, A[t]he court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.@ Fed. R. Civ. P. 56(a). Petitioner is further NOTIFIED that Rule 56(c) of
the Federal Rules of Civil Procedure addresses the procedures for supporting a party=s
factual positions for consideration on summary judgment.
Petitioner must cite to particular parts of the materials in the record, which may
include trial and other court transcripts and exhibits, depositions, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other admissible evidence in
order to show that there is a genuine dispute concerning a material fact or that the
respondent cannot support his factual position with admissible evidence. Fed. R. Civ.
P. 56(c)(1) and (2). Furthermore, the court may consider materials cited by either party
or it may consider other evidence of record, even if the parties have not relied upon
those materials. Fed. R. Civ. P. 56(c)(3). Any affidavits or declarations must be made
on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P.
56(c)(4).

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Petitioner is also NOTIFIED that a failure to respond to Respondent=s Motion for
Summary Judgment may result in entry of summary judgment denying the relief sought
in the Petition and dismissing the suit. In preparing a response, Petitioner should be
aware of the fact that a knowing assertion of a falsehood in order to avoid dismissal
could, if proven, constitute perjury punishable by law. Petitioner=s response shall be
filed within 60 days of entry of this Order, and shall not exceed twenty-five
pages.
IT IS SO ORDERED.
The Clerk shall mail a copy of this Order to the pro se Petitioner by certified mail,
return receipt requested, to his last known address as reflected on the docket sheet and
to counsel of record via electronic means.
DATED: November 14, 2018.

Bá ]tÅxá cA `tééÉÇx
JAMES P. MAZZONE
UNITED STATES MAGISTRATE JUDGE

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