NMC – Zach Scruggs readying his appeal
Zach Scruggs has asked Judge Biggers for an appeal on what he identifies as 18 issues in his effort to set aside his guilty plea. Under the law, Judge Biggers is to evaluate whether reasonable judges would differ on the issues, and grant an appeal on those where there might be a difference of opinion. His granting of an appeal is called a “Certificate of Appealability.” For those issues he denies a COA, Zach then appeals whether he should have been allowed a COA, an altogether odd procedure.
Some of the issues are a bit oddly phrased– I think it would come as a surprise to Judge Biggers that his ruling could be characterized as finding it was OK to accept a guilty plea for non-criminal behavior (issue 2). The assumption that the court ruled Zach Scruggs could be convicted without a crime runs like a thread through the first few points being raised. There’s an argument that Judge Biggers applied the wrong standard when he talked about what a reasonable juror could have found– the argument is that the standard should be would have found (Issue V). A huge number of the issues revolve around variations on the theme “Zach Scruggs did not know what the conspiracy was up to, and therefore could not have joined it,” a theory that revolves around rejecting Balducci’s testimony about what he said in Zach Scruggs’s presence and what it meant.
Here’s Application for COA. If anyone sees anything interesting or new I missed, go for it in comments.
NMC
8/18/11
