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.
November 26, 2012 at 6:32 pm
Here is the entire Roberts opinion; after reading it, I’m even more puzzled:
Michael G. Roberts appeals the district court’s denial of his motion for release on bond pending the disposition of his 28 U.S.C. § 2255 motion. Release on bail should be granted to a prisoner pending post-conviction habeas review “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.” Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974). Examples of “extraordinary circumstances” include the serious deterioration of the petitioner’s health while incarcerated, short sentences for relatively minor crimes so near completion that extraordinary action is essential to make collateral review truly effective, and extraordinary delay in processing a habeas petition. See id. at 702 n. 1.
Regardless of the merits of Roberts’ claims, on which the district court has not yet ruled, Roberts has failed to show the existence of any “extraordinary or exceptional circumstances” necessitating his release on bond to make the post-conviction remedy effective. Because Roberts’ allegations thus do not justify a grant of release on bail pending determination of the merits of his § 2255 motion, the district court did not err by denying Roberts’ motion for bond. See id. at 703.
<< NMC November 26, 2012 at 6:34 pm Possibly inadvertently, Judge Davidson is signaling some doubt about his decision to the Fifth Circuit, isn’t he?