As options run out, ex-Virginia gov. turns to Supreme Court

AP News
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Posted: Aug 20, 2015 5:55 PM

RICHMOND, Va. (AP) — His legal options running out, former Virginia Gov. Bob McDonnell on Thursday turned to the U.S. Supreme Court, asking that he be allowed to stay out of prison while he makes his final appeal on public corruption convictions.

Earlier Thursday, the 4th U.S. Circuit Court of Appeals in Richmond refused to grant McDonnell's request to remain free while appealing to the high court. That decision means McDonnell would probably have to report to prison within the next several weeks to begin his two-year sentence, handed down in January for doing favors for a wealthy businessman in exchange for more than $165,000 in gifts and loans.

But McDonnell's attorneys filed an emergency application hours later to the Supreme Court, asking for a delay of the lower court's decision or to let McDonnell remain free on bond while he makes his final appeal. The request was made to Chief Justice John Roberts, who handles emergency appeals from the 4th U.S. Circuit Court of Appeals. Roberts can decide the matter himself or refer it to the full Supreme Court. There is no set timeline for Roberts or the court to make a decision.

McDonnell's attorneys noted in the filing that he could finish serving his two-year prison sentence before the Supreme Court rules whether the conviction was justified.

"There is no dispute, at the threshold, that he is not a flight risk or threat to public safety," the court filing says. "Nor is there doubt that 'irreparable harm' would otherwise result: If Gov. McDonnell begins his two-year sentence immediately, as will be required absent relief from this Court, he will have no remedy if this Court later invalidates his conviction."

In a statement shortly before the emergency application was filed, McDonnell said he was "saddened by the court's decision today to deny me freedom while I pursue vindication."

Last week, the appeals court refused to reconsider a three-judge panel's unanimous ruling upholding McDonnell's convictions but said nothing about his bond status. McDonnell asked the court to state in writing that he could remain free while seeking Supreme Court review. Prosecutors opposed the request, arguing that McDonnell should begin serving his term now that the appeals court has finished with the case.

Carl Tobias, a University of Richmond law professor who closely follows the Richmond-based appeals court, said he doubts the Supreme Court will allow McDonnell to remain free.

"I think there's a chance, but it's probably a longshot," Tobias said Thursday.

McDonnell has until Nov. 9 to file his request asking the Supreme Court to review his case.

Legal experts say that once the appeals court completes its review and a conviction is final, the federal probation office compiles information about the defendant's case and background and forwards it to the U.S. Bureau of Prisons. The agency analyzes the information and determines what type of programs the defendant might need — substance abuse counseling or high school equivalency courses, for example — and determines the appropriate security level and designates a prison. The agency then sends a certified letter to the defendant telling him where and when to report to prison.

The process can take a few weeks.

When the former governor was sentenced in January, his lawyers asked U.S. District Judge James Spencer to recommend that McDonnell be sent to the low-security federal prison camp in Petersburg, Virginia. The Bureau of Prisons considers judges' recommendations along with other factors, such as available space.

McDonnell was convicted on 11 public corruption charges. The case derailed the career of the rising Republican star, who had been viewed as a possible running mate to presidential candidate Mitt Romney in 2012.

McDonnell's wife, Maureen, also was convicted. She was sentenced to one year and one day in prison. She has remained free on bond while she pursues her separate appeals in the 4th U.S. Circuit Court of Appeals.

The appeals court will hear arguments in Maureen McDonnell's case in late October. Late Wednesday, she filed a brief saying the recent appeals court decision in her husband's case shouldn't mean her own appeal suffers the same fate.

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Associated Press writers Alan Suderman in Richmond and Sam Hananel in Washington contributed to this report.