USA v. Rivers

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:20-cr-59-KDB-DCK-1
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
ANTHONY RICHARD RIVERS, )
)
Defendant. )
___________________________________ )
THIS MATTER is before the Court on its own motion following the filing of the
Government’s Motion to Dismiss Defendant’s Motion Under 28 U.S.C. § 2255 [Doc. 95].
The Court notifies Defendant that, in accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Defendant has a right to respond to the Government’s Motion to Dismiss.1 The
Court also advises Defendant that failure to file a timely and persuasive response may result in
dismissal of the § 2255 Motion to Vacate.
IT IS, THEREFORE, ORDERED that Defendant shall respond to the pending Motion
to Dismiss [Doc. 95] no later than twenty-one (21) days from entry of this Order. Failure to file
a timely and persuasive response will likely lead to the dismissal of this action.
1 The Fourth Circuit did not hold in Roseboro that such notice is required for motions to dismiss. Rather, the Fourth
Circuit’s discussion in Roseboro regarding notice was directed to summary judgment motions. See Roseboro, 528
F.2d at 310 (“We agree with the plaintiff, however, that there is another side to the coin which requires that the plaintiff
be advised of his right to file counter affidavits or other responsive material and alerted to the fact that his failure to
so respond might result in the entry of summary judgment against him.”); see also Norman v. Taylor, 25 F.3d 1259,
1261 (4th Cir. 1994) (“In Roseboro[], this circuit held that pro se plaintiffs must be advised that their failure to file
responsive material when a defendant moves for summary judgment may well result in entry of summary judgment
against them.”), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010). Nevertheless, courts routinely
issue Roseboro notices for motions to dismiss, and the Court does so here.
Case 5:20-cr-00059-KDB-DCK Document 96 Filed 04/15/24 Page 1 of 2

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IT IS SO ORDERED.
Signed: April 12, 2024
Case 5:20-cr-00059-KDB-DCK Document 96 Filed 04/15/24 Page 2 of 2