United States v. Bruce Rutherford

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 26, 2020
• Docket: 20-40244
• Status: Unpublished

Opinion

Case: 20-40244 Document: 00515468029 Page: 1 Date Filed: 06/26/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 20-40244 FILED Summary Calendar June 26, 2020 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

BRUCE ALLEN RUTHERFORD, also known as Allen Bruce Rutherford,

Defendant−Appellant.

Appeal from the United States District Court for the Eastern District of Texas No. 4:19-CV-348 No. 4:17-CR-41-1

Before SMITH, COSTA, and HO, Circuit Judges. PER CURIAM: *

Bruce Rutherford, federal prisoner #27006-078, appeals the denial of

*Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4. Case: 20-40244 Document: 00515468029 Page: 2 Date Filed: 06/26/2020

No. 20-40244

summary judgment and the denial of release on bail in a 28 U.S.C. § 2255 pro- ceeding challenging his conviction and sentence for possession of child pornog- raphy. He asserts several claims of ineffective counsel. He also moves for bail pending appeal and for leave to appeal in forma pauperis (“IFP”). Rutherford’s motion to appeal IFP is granted, but we dispose of the appeal without further briefing.

The denial of the motion for summary judgment is not a final appealable judgment under 28 U.S.C. § 1291. See Skelton v. Camp, 234 F.3d 292, 295 (5th Cir. 2000). No recognized exception to the final judgment rule applies here. Accordingly, the appeal is DISMISSED in part for want of jurisdiction with regard to the denial of summary judgment.

Rutherford’s motion for release on bail pending appeal is DENIED because he fails to “raise[ ] substantial constitutional claims upon which he has a high probability of success” and because he fails to allege or show that “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). For the same reasons, the denial of release on bail pending the disposition of the § 2255 motion is AFFIRMED. See id.