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United States v. Chandler

United States District Court, W.D. North Carolina, Asheville Division

February 26, 2019

UNITED STATES OF AMERICA,
v.
RICHARD JOSEPH CHANDLER, Defendant.

          ROSEBORO ORDER

          Max O. Cogburn Jr. United States District Judge

         THIS MATTER is before the Court on the government's Motion to Dismiss Amended Pro Se Petition Filed by David Harlen Cole, Jr.

         In accordance with Roseboro v. Garrison 582 F.2d 309 (4th Cir. 1975), the Court advises Mr. Cole, who is proceeding pro se, that he has the right to respond to the government's Motion. Mr. Cole is advised that he has the right to file a written Response to the government's motion to dismiss and therein explain to the Court why his Amended Petition should not be dismissed.[1]

         Mr. Cole is further advised that the dismissal the government seeks is based on two issues: first, the government contends that you have again failed to submit your petition under penalty of perjury; and second, that you fail to allege or explain the nature and extent of your right, title, or interest in the car.

         I. Penalty of Perjury

         As to the first issue, Mr. Cole is advised that he has patently failed to follow the statute or the instructions in the Court's previous Order. At this point, the Court could summarily dismiss the petition as it is apparent that petitioner does not want to file his petition under the penalty of perjury. However, this Court gives, within reason, pro se parties the benefit of the doubt. In order to now satisfy the requirement that his petition be filed under penalty of perjury, he must file affidavit that provides as follows:

Affidavit:
I swear or affirm under the penalty of perjury that the information contained in the Amended Petition (#37) is true and correct. Executed on (date).
Signature of Petitioner
Notary

         Alternatively, federal law provides that if the declaration is not sworn before an official authorized to administer an oath (a Notary), it may nevertheless be admissible to support a matter if made under penalty of perjury. See 28 U.S.C. § 1746(2) (allowing for unsworn declarations to support any matter that legally permits an affidavit to support it). To file an unsworn declaration, Mr. Cole must provide a document, as follows:

Declaration
I declare (or certify, verify or state) under penalty of perjury that the the information contained in the Amended Petition (#37) is true and ...

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