United States v. Rutherford

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-40244
Summary Calendar

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should not be published and is not precedent except under the limited circumstances set forth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 5
TH CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 26, 2020

Lyle W. Cayce
Clerk
Case: 20-40244 Document: 00515468029 Page: 1 Date Filed: 06/26/2020

No. 20-40244
2
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.
Case: 20-40244 Document: 00515468029 Page: 2 Date Filed: 06/26/2020