United States District Court, W.D. North Carolina, Asheville Division
COGBURN JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Government's
Motion to Dismiss Amended pro se Petition (#39)
filed by David Harlen Cole, Jr. (“Claimant”).
November 30, 2018, Defendant Richard Joseph Chandler
(“Defendant”) pleaded guilty to Counts Three and
Four of the Superseding Indictment, which charged him with
possession with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
(Count Three), and possession of one or more firearms in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Count Four). On November 30,
2018, this Court issued a Consent Order and Judgment of
Forfeiture (#25), under which Defendant agreed that a silver
2006 BMW (VIN: WBAVB33566KR76593) is subject to criminal
forfeiture under 21 U.S.C. § 853, 18 U.S.C. §
924(d), and 28 U.S.C. § 2461(c).
time of his arrest on July 21, 2018, Defendant was seated in
the driver's seat of the silver 2006 BMW referenced
above. Inside the vehicle, officers located, among other
things, approximately 553.4 grams of suspected
methamphetamine, several thousand dollars in U.S. Currency,
digital scales, two syringes, a .40 caliber handgun that was
later determined to be stolen, a loaded .40 caliber magazine,
and several zip lock bags. Gov't Mem. (#40) at 2.
Government obtained information that the silver 2006 BMW was
registered in Claimant's name. Accordingly, consistent
with 21 U.S.C. § 853(n)(1), on December 17, 2018, the
Government provided direct notice of the forfeiture to
Claimant by mailing him a copy of the Consent Order and
Judgment of Forfeiture, along with a summary of the
requirements for filing a valid petition under 21 U.S.C.
§ 853(n)(3). See (#31-1). In particular, the
Notice made clear that the petition “must be signed by
the petitioner under penalty of perjury and set forth the
nature and extent of the petitioner's right, title or
interest in each of the forfeited properties . . . .”
Id. at 3 (citing 21 U.S.C. § 853(n)(3)).
January 2, 2019, Claimant filed a Petition (#28), asserting
that the “BMW has not been fully paid for by Richard
Joseph Chandler and the car is still in my name and I would
like it back.” On January 17, 2019, the Government
filed a Motion to Dismiss Claimant's Petition, arguing
that he failed to satisfy the requirements of 21 U.S.C.
§ 853(n)(3) and otherwise failed to sufficiently
demonstrate a valid interest in the vehicle. See
Gov't Mot. (#30); Gov't Mem. (#31).
February 4, 2019, the Court issued an Order denying the
Government's Motion to Dismiss without prejudice, finding
that, although the Government was correct as to the governing
law and its interpretation of the petition, “the Court
finds the better course of action is to require petitioner to
file an amended petition signed under penalty of perjury
either by affidavit or declaration.” Order (#36) at 1.
Accordingly, the Court directed Claimant to “file an
Amended Petition under penalty of perjury within 14 days of
entry of this Order.” Id. at 2.
February 12, 2019, Claimant filed an Amended Petition (#37).
Unlike his original Petition, Claimant signed the Amended
Petition in the presence of a notary. Id. at 3.
Additionally, unlike his original Petition, Claimant attached
a document, which he contends is his current title status
statement, and a DMV statement for the vehicle. Id.
at 4-5. Otherwise, the Amended Petition is similar to the
February 25, 2019, the Government filed the present Motion to
Dismiss the Amended Petition (#39), arguing that Claimant has
still failed to satisfy the requirements of 21 U.S.C. §
853(n)(3). In accordance with Roseboro v. Garrison,
582 F.2d 309 (4th Cir. 1975), the Court advised Claimant, who
is proceeding pro se, that he had the right to file
a written Response to the Government's Motion to Dismiss
and explain why his Amended Petition should not be dismissed.
See Roseboro Order (#41). Claimant was further
advised of the bases upon which the Government seeks
dismissal and given specific instructions on how to
address each issue. The Court allowed Claimant 14 days to
respond to the Government's Motion to Dismiss. Claimant
did not respond and the time to do so has
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