The Government filed a brief response to Zach Scruggs’s motion for summary judgment. I discussed that motion here and here.
The Government response makes a very few points:
1. Zach Scruggs did not move to set aside his plea within a year, and did not appeal. Therefore, all his claims are barred by the statute of limitations except his claim based on Skilling (I would think the claim based on Whitfield/Minor would also come under this category), and for all claims including Skilling (and, again, I’d add Whitfield/Minor), they are barred unless he proves actual innocence.
2. On all claims, Zach Scruggs has the burden to prove actual, factual innocence, that is, “that it is more likely than not that no reasonable juror would have convicted him of the crime to which he pled guilty or to the underlying crimes that were dismissed as a result of his guilty plea.” The Government cites Bousley v. U.S., 523 U.S. 614 (1998) for this.