Mosley v. U.S.

Full title: ALVIS MOSLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, W.D. North Carolina, Statesville Division

Date published: Feb 8, 2008

5:07CV133-1-V (W.D.N.C. Feb. 8, 2008)

Opinion

5:07CV133-1-V.

February 8, 2008

ORDER

RICHARD VOORHEES, District Judge

THIS MATTER is before this Court upon a petition pursuant to 28 U.S.C. § 2255. The government has filed a Response to Petitioner's 2255 Petition and it appears that the government may be entitled to summary judgment as a matter of law.

The Petitioner is advised that under the provisions of Rule 56(e) of the Federal Rules of Civil Procedure, he is required to submit documents, affidavits, or unsworn declarations made under penalty of perjury, in opposition to the Response to Petitioner's 2255 Petition and supporting documents filed by the government. Rule 56(e) reads in pertinent part as follows:

When a motion for summary judgment is made and supported [by affidavits], an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him.

This rule requires that if the Petitioner has any evidence to offer to counter the evidence contained in the Response to Petitioner's 2255 Petition and supporting documents filed by the government, he must present it to the Court in the form of documents, affidavits, or unsworn declarations under penalty of perjury. An affidavit is a written statement made under oath; that is, a statement prepared in writing by the Petitioner and sworn before a Notary Public. If the Petitioner chooses, he may instead submit an unsworn declaration and state the following with the date and his signature:

"I declare under penalty of perjury that the foregoing is true and correct."

PETITIONER MOSLEY READ THIS:

The Petitioner is further hereby advised that he has thirty (30) days from the filing of this Order in which to file documents, affidavits, or unsworn declarations in opposition to the government's Response to Petitioner's 2255 Petition. FAILURE TO RESPOND WITHIN THIS TIME PERIOD MAY SUBJECT THIS ACTION TO SUMMARY JUDGMENT. THEREFORE, IT IS HEREBY ORDERED that the Petitioner has thirty (30) days from the filing of this Order in which to provide his own documents, affidavits, or declarations countering the evidence offered by the government's Response to Petitioner's 2255 Petition.