Rachuy v. USA

Filing 55

ORDER granting 45 Motion for Leave to Appeal in forma pauperis; denying 48 Motion for Release Pending Appeal. Signed by District Judge William M. Conley on 7/21/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

GALE RACHUY,
Petitioner,

OPINION AND ORDER

v.
15-cv-235-wmc
10-cr-141-wmc
UNITED STATES OF AMERICA,
Respondent.

Petitioner Gale Rachuy has filed a notice of appeal of the court’s April 15, 2016 order
denying his motion for post-conviction relief under 28 U.S.C. § 2255, along with a motion to
proceed in forma pauperis on appeal. (Dkt. #45.) Petitioner was previously found eligible for
court-appointed counsel in his underlying criminal case and was granted in forma pauperis status
on his previous appeal. His financial affidavit demonstrates that he is unable to pay the filing
fee for his appeal. Accordingly, he may proceed in forma pauperis on appeal unless this court
“certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The court
does not find that Rachuy’s appeal is taken in bad faith and therefore, will grant his request to
proceed in forma pauperis.
Rachuy has also filed a motion for release pending appeal, on the grounds that he is sure
to win his appeal and will present no danger to the public if released. (Dkt. #48.) That
motion will be denied.

Although “federal district judges in habeas corpus and § 2255

proceedings have inherent power to admit applicants to bail pending the decisions of their
cases, [it is] a power to be exercised very sparingly.” Cherek v. United States, 767 F.2d 335, 337
(7th Cir.1985). “The reasons for parsimonious exercise of the power should be obvious.” Id.

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“A defendant whose conviction has been affirmed on appeal ... is unlikely to have been
convicted unjustly; hence the case for bail pending resolution of his post-conviction proceeding
is even weaker than the case for bail pending appeal. And the interest in the finality of
criminal proceedings is poorly served by deferring execution of sentence until long after the
defendant has been convicted.”

Id.

Here, Rachuy has demonstrated no exceptional

circumstances and has not shown that he is deserving of special treatment while his § 2255
appeal is pending. His only arguments in favor of release are the same arguments that this
court already considered and rejected in denying his § 2255 motion. Accordingly, Rachuy will
not be released pending appeal.

ORDER
IT IS ORDERED that:
1. Petitioner Gale A. Rachuy’s request for leave to proceed in forma pauperis on appeal (dkt.
#45) is GRANTED.
2. Petitioner’s motion for release pending appeal (dkt. #48) is DENIED.
Entered this 21st day of July, 2016.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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