The one year anniversary of the United States Supreme Court decision in Skilling is tomorrow. There’s a one year statute of limitations for federal habeas actions… so…
Dickie Scruggs has filed a motion to vacate his sentence in Scruggs II (the case involving DeLaughter and WIlson v. Scruggs) citing the Skilling case.
Here’s the motion to vacate. There’s a brief with exhibits, about which more ina bit.
The argument is set forth in a brief filed with the motion. Dickie Scruggs is arguing that he is actually innocent. He argues, first, that the call to Judge DeLaughter was worth nothing and therefore not a bribe. This exact argument was raised by Judge DeLaughter in motions in Scruggs II and there is no reason Scruggs could not have raised it. There’s not much in the way of an argument in the brief why it wasn’t waived by the guilty plea. He argues, second, that hiring friend-of-the-judge Ed Peters to secretly contact the judge (and even work through drafting an order intermediating between the judge and Scruggs’s lawyers, all in secret) and paying friend-of-the-judge up to $2.5M was not a bribe because… that’s less clear. Because the judge didn’t get any of it, I suppose.
The brief starts by quoting the holding in Skilling— “honest-services fraud does not encompass conduct more wide-ranging than the paradigmatic cases of bribes and kickbacks”–and then goes on to refer to a “paradigmatic bribe.” Whoever wrote it felt necessary to define the word “paradigmatic” (twice). I’d have been inclined to assume Judge Davidson wouldn’t need that.
There are three hurdles Scruggs will have to clear to get relief– first, that the call to Lott was worthless (a position Judge Davidson has already rejected); second, that the payments of that size to a good friend working off-the-record with ex parte contact doesn’t count because it didn’t go to the judge.
And then there’s that it is $2.5M.
Here’s the brief.