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Zach Scruggs motion for summary judgement 042211

Zach Scruggs motion for summary judgement 042211

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Published by: yallpolitics on Apr 25, 2011
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1UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPIUNITED STATES OF AMERICAv. CRIMINAL CASE NO. 3:07CR192-b-aDAVID ZACHARY SCRUGGSPetitioner moves for summary judgment on all of the claims raised by his Petition, or partialsummary judgment on any of those claims. “The basic mission of the summary judgmentprocedure is to allow the court to pierce the pleadings and assess the proof … serv[ing] avaluable function in winnowing the grain from the chaff,” so the Court can be sure thatlitigation concerns itself with real issues.” , 346 F.2d 433, 436 (5
th
Cir., 1965)(quoting other sources).This is a unique case, given that the Government has itself tacitly admitted that Petitioner hadno involvement in bribery, and former prosecutors themselves admit that the Government misledthe Court in a way that materially affected the Petitioner’s case. There is no real dispute aboutthese issues; no real dispute that the Petitioner is actually innocent and that his constitutionalrights to due process were violated.The Federal Courts routinely use the Rule 56 summary judgment procedure in the context of post-conviction proceedings under Sections 2254, 2255, and (as here)., 359 F.3d 708 (5th Cir., 2004) (affirming district court’s grant of summary judgment in a Section 2254 case); , 135 F.3d 1000, 1002 (5th Cir., 1998) (affirming
PETITIONER’S MOTION FOR SUMMARY JUDGMENTI. LEGAL STANDARD
Gauck v. Meleskicoram nobis See e.g.,Busby v. DretkeU.S. v. Flores
 
2district court’s grant of summary judgment in a Section 2255 case, where the trial court found“contentions to be ‘entirely conjectural and unsupported by anything in the record.’);, 91 F.3d 767, 768 (5th Cir., 1996) (affirming district court’s grant of summary judgment in a case, quoting Fed. R. Civ. Proc. 56).The Fifth Circuit has recently reiterated the standard for summary judgment as follows:A court “shall grant summary judgment if the movant shows that there is nogenuine dispute as to any material fact and the movant is entitled to judgment as amatter of law.’ An issue as to a material fact is genuine “if the evidence is suchthat a reasonable jury could return a verdict for the nonmoving party.” [TheCourt should] consider all evidence “in the light most favorable to the partyresisting the motion.”., --- F.3d ----, 2000 WL 35832322, *3 (5th Cir.,2011) (quoting Fed.R.Civ.Proc. 56(a), citing , 477 U.S. 317, 322-23,(1986), quoting ., 477 U.S. 242, 248 (1986), and quoting., 701 F.2d 397, 407 (5th Cir.1983)). A party may prevail on summary judgment, even if he bears the ultimate burden of proof., 41 F.3d 1018, 1023-24 (5
th
Cir., 1995) (affirming summary judgment for plaintiff);, Slip Copy, 2011 WL 72198, *1 (5
th
Cir., 2011)(defendant prevailed on summary judgment on affirmative defense); , Slip Copy, 2010 WL 4272680 (5
th
Cir.,2010)(same).If the Government opposes the Motion by alleging that the material facts are genuinelydisputed, then it must support the assertion by:citing to particular parts of materials in the record, including depositions,documents, electronically stored information, affidavits or declarations,stipulations (including those made for purposes of the motion only), admissions,interrogatory answers, or other materials.
Jimenez v.Trominskicoram nobisSeacor Holdings, Inc. v. Commonwealth Ins. CoCelotex Corp. v. CatrettAnderson v. Liberty Lobby, Inc Trevinov. Celanese CorpSee e.g., Resolution Trust Corp. v.Starkey Tuftv. TexasLane v. Doe
 
3Fed. R. Civ. Proc. 56(c)(1). In making this showing the Government cannot rely uponinadmissible evidence such as hearsay, conclusory allegations, or expert opinions that lack ascientific foundation at (c)(1)(B), (c)(2). , 154 F.3d 269, 274(5th Cir.1998) (holding that “affidavits setting forth ‘ultimate or conclusory facts andconclusions of laware insufficient to either support or defeat a motion for summary judgment[,]” and that “[w]ithout more than credentials and a subjective opinion, an expert'stestimony that ‘it is so’ is not admissible.” (quoting, 922 F.2d 220, 225 (5th Cir.1991). And, simply gesturing towards a future hearingwill not suffice. In the case of , the Fifth Circuit explained:Partial summary judgment was appropriate because instead of responding byaffidavits ‘made on personal knowledge,F.R.Civ.P. 56(e),. Since Pelotto had the burden of proving inadequacy, his failure to submit controverting affidavits or other factualproof entitled the District Judge to enter summary judgment against him.Allegations that one ‘might could’ show certain facts at trial are simplyinsufficient under Rule 56(e).604 F.2d 396, 403 (5
th
Cir., 1979) (emphasis added).There is no genuine dispute as to the following material facts. Several of these facts areasserted in the alternative.1.1.
. Id., Hayter v. City of Mt. VernonOrthopedic & Sports Injury Clinic v. WangLab., Inc.Pelotto v. L & N Towing Co.
Pelotto merelyasserted that the inadequacies … would be shown upon trial. Pelotto'sresponse was clearly a procedural defect under Rule 56(e), which requiresthe submission of controverting affidavitsII. STATEMENT OF FACTS THAT ARE NOT GENUINELY DISPUTED1. ConspiracyWhen Petitioner met on March 15, 2007 with Tim Balducci, Steve Patterson,Richard Scruggs, and Sid Backstrom, they did not make any agreement to commita crime.

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