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Dickie Scruggs uses bond request to disclose 'malignant cancerous lesion' that needs treatment

Dickie Scruggs uses bond request to disclose 'malignant cancerous lesion' that needs treatment

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Published by yallpolitics

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Published by: yallpolitics on Oct 31, 2012
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12/04/2012

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPIUNITED STATES OF AMERICAv.NO. 3:09CR002-GHDRICHARD F. SCRUGGS
PETITIONER’S MOTION FOR RELEASE PENDING APPEAL
Petitioner Richard F. Scruggs moves this Court to grant him bail pending appeal.Petitioner’s release date for his first sentence, the so-called Scruggs I sentence, isNovember 6, 2012. Thus, to the extent that this case presents a significant possibility of the Fifth Circuit granting of Petitioner’s habeas corpus on appeal a possibilityrecognized by this Court in granting the Certificate of Appealability – then a substantialpossibility exists that Petitioner will be serving time in the Bureau of Prisons when heshould have been released. Fundamental fairness and the law’s proper concern that noone should serve time in incarceration for a non-crime strongly suggest that releasepending appeal is a proper course under these unique circumstances.“It is within the inherent power of a district court of the United States to enlarge a... prisoner on bond pending hearing and decision on his application for a writ of habeascorpus.”
In re Wainwright 
, 518 F.2d 173, 174 (5th Cir.1975) (per curiam) (affirming adistrict court’s grant of bail against mandamus challenge by the government). The
Case: 3:09-cr-00002-GHD-SAA Doc #: 224 Filed: 10/29/12 1 of 8 PageID #: 2299
 
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Federal Rules of Appellate Procedure provide in 23(b) that: “While a decision not torelease a prisoner is under review, the court or judge rendering the decision, or the courtof appeals, or the Supreme Court, or a judge or justice of either court, may order that theprisoner be … released on personal recognizance, with or without surety.”
See also Atkins v. People of State of Mich.
, 644 F.2d 543, 549 (6th Cir., 1981) (granting bail onpre-conviction habeas petition, noting that “‘inherent in our American concept of liberty’is the general existence of the right to bail”). There are several unusual circumstancesthat make bail appropriate in this case:First, Petitioner has not yet begun serving the marginal portion of the sentence thatis now being challenged. Petitioner has been serving a five-year sentence for a separatecase (3:2007-cr-00192), a sentence which concludes on November 6, 2012. Until thatdate, the seven-year sentence imposed in the present case has been running concurrently,and the marginal two years will just now begin to run. Thus, pragmatically, the questionis not whether to continue punishing Petitioner for this crime, it is whether to start.Second, in its decision to grant a Certificate of Appealability (COA), the DistrictCourt has already held that Petitioner “has made a
substantial
showing of the denial of constitutional rights,” specifically to the question of whether Petitioner is “actuallyinnocent” of the crime of his conviction. D.E. 220 (emphasis added). As Justice Douglassaid in the habeas case of 
Yanish v. Barber 
, “Allowance of bail pending appeal dependsupon a determination whether the appeal presents a
substantial
question.” 73 S.Ct. 1105,1107 (1953)(emphasis added). Likewise in
Levy v. Parker 
, 396 U.S. 1204 (1969), JusticeDouglas held that, although the district court, the court of appeals, and the circuit justice
Case: 3:09-cr-00002-GHD-SAA Doc #: 224 Filed: 10/29/12 2 of 8 PageID #: 2300
 
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had all denied bail, since the applicant had raised “substantial issues” on appeal, heshould be granted bail. Here, the District Court has already resolved this question of “substantiality” in the affirmative by granting the COA. To punish someone who hasmade such a showing, before allowing appellate review of such a decision, is to run asubstantial risk of false imprisonment.Third, the District Court proposes to begin punishing Petitioner on the basis of factual allegations – the existence of a bribery agreement – that was neither admitted inPetitioner’s plea, nor proven to a jury of his peers. Instead, the District Court conducteda multi-day bench hearing, without a jury, to find its own new factual basis to justifypunishment. C.f.,
Aronson v. May
, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964) (the bail inquiry ismore onerous where the Petitioner was “tried, convicted, and sentenced by a court of law.”);
Sanchez v. Winfrey
, Not Reported in F.Supp.2d, 2004 WL 1118718, *3(W.D.Tex.,2004)(granting bail to a habeas petition that had not been convicted by a juryor admitted guilt). This situation of punishment without either plea or trial is disturbingin a country with a Constitutional right to a jury trial.
See U.S. v. Booker 
, 543 U.S. 220,244 (2005) (holding that any fact that forms the basis for extending a term of punishmentmust be “established by a plea of guilty or ... must be admitted by the defendant orproved to a jury beyond a reasonable doubt.”). If the Judiciary is going to begin thepunishment of someone without an admission or a jury finding, it should at the very leastallow itself to consider the merits of doing so in the course of a meaningful appeal.Fourth, this is an unprecedented prosecution for the making of a politicalendorsement, and the Supreme Court has already resolved in
Skilling
that the statute that
Case: 3:09-cr-00002-GHD-SAA Doc #: 224 Filed: 10/29/12 3 of 8 PageID #: 2301

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