When Judge Biggers partially denied Zach Scruggs’s motion for summary judgment on his habeas claim, Zach Scruggs moved for reconsideration just before the hearing. Judge Biggers has now shot down that effort, ruling, first, that the argument he must grant summary judgment because of the Government’s inadequate response is wrong, and, second, that the “jurisdictional” issue being raised about the plea (which is essentially that, because there was nothing about concealment in the factual basis, the court lacked jurisdiction to allow entry of plea for misprision) still isn’t about jurisdiction at all, still relies on an overruled case, still was waived because it was not directly raised and appealed at the time, and is still time barred. In his original opinion he also noted that there were facts supporting a finding of concealment.
Anyone wanting a collection of cases that thoroughly establish that, even where there is a lousy (or no) response, a court still isn’t compelled to grant summary judgment will find such a collection in Judge Biggers’s opinion.
Yesterday someone in comments asked what Judge Biggers was going to do, and I answered “decide the case.” I’m guessing decide with relative dispatch, based on this coming out now, although I could have seen rolling this opinion into a final one if the final one was close to going out the door.
These decisions have no impact on Dickie Scruggs’s motion to vacate, which relates to other issues in Zach Scruggs’s petition. The final opinion will have an impact.
Here is the opinion.