     Case: 13-10456       Document: 00512271066         Page: 1     Date Filed: 06/12/2013




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

                                                                            FILED
                                                                           June 12, 2013

                                     No. 13-10456                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

DAVID CHARLES PFLUGER,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No: 1:13-CV-60
                             USDC No: 1:10-CR-54-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       David Charles Pfluger moves pursuant to Fifth Circuit Rule 9.2 for release
from imprisonment pending resolution of his 28 U.S.C. § 2255 petition for
habeas corpus relief. We DENY his motion.
                           FACTS AND PROCEEDINGS




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 13-10456

      Pfluger, formerly a lieutenant colonel in the Texas Army National Guard,
was charged by indictment with conspiracy in violation of 18 U.S.C. § 371, two
counts of accepting illegal gratuities as a public official in violation of 18 U.S.C.
§ 201(c)(1)(B), and conversion of property as an officer of the United States in
violation of 18 U.S.C. § 654. These charges stemmed from a series of incidents
that occurred while Pfluger was called to active duty and deployed in Iraq,
serving at Forward Operating Base Ridgeway (“FOB Ridgeway”) in Anbar
Province. Pfluger was accused of having accepted money, jewelry, and other
gifts from Iraqi nationals in return for performing various official acts, including
helping them obtain lucrative contracts and issuing them weapons permits.
      Pfluger moved to dismiss all the charges against him, alleging that they
violated an applicable statute of limitations. The district court denied this
motion. Pfluger then pled guilty to all four counts pursuant to a conditional plea
agreement, reserving the right to appeal the district court’s denial of his motion
to dismiss and any offense-level increase imposed at sentencing on the basis of
U.S.S.G. § 2C1.2(b)(3) (“If the offense involved . . . any public official in a high-
level decision-making or sensitive position, increase by 4 levels.”). He waived all
other rights to appeal or to challenge his conviction or sentence in post-
conviction proceedings, including those under § 2255. The district court accepted
Pfluger’s guilty plea and sentenced him to 18 months’ imprisonment, a term of
supervised release, and restitution. Pfluger appealed to this court, challenging
the district court’s denial of his motion to dismiss. We affirmed, and the
Supreme Court declined to grant certiorari on Pfluger’s petition. United States
v. Pfluger, 685 F.3d 481, 481-82 (5th Cir. 2012), cert. denied, 133 S. Ct. 1279
(2013).
      Pfluger retained new counsel and filed a § 2255 petition for post-conviction
relief, alleging ineffective assistance of counsel. He then moved for a stay of the
district court’s order that he report to the Bureau of Prisons for imprisonment.

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                                       No. 13-10456

The district court denied his motion, and Pfluger began serving his sentence.
Pfluger then moved for bail pending resolution of his § 2255 petition. The
district court denied this motion, and Pfluger now moves this court pursuant to
Fifth Circuit Rule 9.2 for release pending appeal from a judgment of conviction.
                                      DISCUSSION
       Bail is warranted “pending postconviction habeas corpus review only when
the petitioner has raised substantial constitutional claims upon which he has a
high probability of success, and also when 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) (per
curiam).1 The district court has yet to determine whether to hold an evidentiary
hearing into Pfluger’s habeas claims, and as a result we decline to address
whether Pfluger has demonstrated a high probability of success on his ineffective
assistance of counsel claims. See United States v. Bishop, No. 12-20084, 2012
WL 3205453, at *2 (5th Cir. Aug. 7, 2012) (“We cannot assess the probability of
success of her claim of ineffective assistance of counsel until the district court
holds an evidentiary hearing.”). Regardless, Pfluger has failed to show the
requisite extraordinary or exceptional circumstances to warrant post-conviction
bail. Cf. Johnston v. Marsh, 227 F.2d 528, 530 (3d Cir. 1955) (declining to revoke
bail ordered by a district court to a petitioner with a chronic condition who was




       1
         Calley involved a habeas petitioner whose underlying conviction was in the military
court system. See Calley, 496 F.3d at 701. However, we drew the legal standard in Calley
from the Supreme Court’s denial of an application for bail in Aronson v. May, which involved
a civilian challenging his convictions in federal district court. See Aronson v. May, 85 S. Ct.
3 (1964).
        Pfluger challenges the applicability of the Calley standard as it predated Federal Rule
of Appellate Procedure 23. Rule 23 governs the transfer of custody pending review of a
decision in a habeas action and detention or release of a prisoner pending review of such a
decision. FED. R. APP. P. 23(a), (b), (c). It does not apply where, as here, a prisoner requests
release prior to a decision in his habeas action. Pfluger’s argument is therefore unavailing.

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                                No. 13-10456

“rapidly progressing toward total blindness” as a result of conditions of his
confinement).
                              CONCLUSION
     For the foregoing reasons, Pfluger’s motion for release is DENIED.




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