Scruggs moved for release pending appeal, arguing the standards for release pending appeal– that he is not a flight risk, that a substantial issue is raised, and, that if he wins it, he will be released. Judge Davidson asked for a brief on jurisdiction, which the parties agreed he had.
He has now ruled that Scurggs can come home on posting a two million dollar bond.
Here’s the opinion.
I’ll post the motion and response in a bit, along with thoughts.
Here are my thoughts on the motion, reply, and response. Scruggs’s motion begins by noting that he was serving concurrent sentences in Scruggs I and II prior to November 6, 2012; after that, he was only serving the seven year sentence in Scruggs II (which gives him now about 20-21 months to go, I think).
By granting a Certificate of Appeallability, Scruggs argued, the district court had found a “substantial showing of the denial of a constitutional right;” given that, the motion invoked the standard for bail pending appeal where the appeal “presents a substantial question”.
He also invoke an issue he’d raised earlier, that he is suffering from Dupuytren’s contractor of the right hand, and that he had obeyed bond conditions pending trial.
The government responded with Fifth Circuit case law that the motion required a showing of a “high probability of success” on appeal, not merely a substantial issue.
United States v. Roberts, 250 F.3d 744 (5th Cir. 2001), a petitioner appealed the District Court’s denial of his motion for release on bail pending disposition of his 28 U.S.C. § 2255 appeal. The Court held that a 2255 petitioner should be released on bail “only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Roberts, p. 744.
Scruggs’s reply did not mention Roberts and essentially repeated the points made in the original motion, while noting the Governments (very halting) concession on jurisdiction. The judge’s opinion tracked the part of Scruggs’s motion noted above, and ignored both Scruggs’s rhetoric about the thinness of the Government case and the Governments’ statement of the standard.
Although I have not independently researched this, I will admit to being surprised by the result after having read the papers.