United States of America Ex Rel. Robert Rice, Relator v. Leon J. Vincent, Superintendent, Green Haven Correctional Facility, Stormville, New York, 486 F.2d 215, 2d Cir. (1973)
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Scribd Government DocsUnited States of America Ex Rel. Robert Rice, Relator v. Leon J. Vincent, Superintendent, Green Haven Correctional Facility, Stormville, New York, 486 F.2d 215, 2d Cir. (1973)
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Scribd Government Docs486 F.
2d 215
UNITED STATES of America ex rel. Robert RICE, Relator,
v.
Leon J. VINCENT, Superintendent, Green Haven Correctional
Facility, Stormville, New York, Respondent.
Docket No. 73-2195-6.
United States Court of Appeals,
Second Circuit.
Argued Aug. 14, 1973.
Decided Sept. 5, 1973.
Robert A. Goldschlag, Asst. Dist. Atty. for New York County, New York
City (Frank S. Hogan, Dist. Atty. for New York County, New York City,
on the brief), for respondent.
Lewis M. Steel, New York City, for relator.
Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
PER CURIAM:
The District Attorney for New York County on behalf of respondent has moved
for a stay of an order entered August 3, 1973 in the Southern District of New
York, Harold R. Tyler, Jr., District Judge, releasing relator, a state prisoner, on
$10,000 bail pending respondent's appeal to our Court from an order entered by
Judge Tyler on July 17, 1973, 361 F.Supp. 843, granting relator's petition for a
writ of habeas corpus unless relator is retried by the State of New York within
60 days.
Following reversal by the New York Court of Appeals, People v. Baker, 23
N.Y.2d 307, 244 N.E.2d 232, 296 N.Y.S. 2d 745 (1968), of an earlier
conviction of relator of murder in the first degree, attempted murder in the first
degree and attempted robbery in the first degree, relator was retried and
convicted of the same offenses on April 9, 1970 in the Supreme Court, New
York County. He was sentenced to life imprisonment. The latter conviction was
unanimously affirmed by the Appellate Division on May 23, 1972. People v.
Rice, 39 A.D.2d 840, 332 N.Y.S.2d 1010 (1st Dept. 1972). Relator's appeal to
the New York Court of Appeals from his second conviction is now pending.
3
Judge Tyler ordered relator released on bail pending respondent's appeal to this
Court on the ground that relator's "backers and friends" will assert sufficient
influence or control over him to prevent him from fleeing. We disagree. He was
living with his mother and grandmother at the time of the two murders with
which he is charged. He faces a life sentence if his 1970 conviction is affirmed
by the New York Court of Appeals. We agree with respondent that relator
should not be released on bail pending respondent's appeal to this Court from
the district court's order granting relator's petition for a writ of habeas corpus
pursuant to 28 U.S.C. Sec. 2254 (1970). In other Sec. 2254 cases where the
district court has granted the writ, this Court has carefully refrained from
granting bail, e. g., United States ex rel. Miller and Quinones v. LaVallee
(Docket No. MR 4212, decided September 21, 1970); United States ex rel.
Vincent Cerullo v. Follette (Docket No. 33381, decided March 3, 1969);
United States ex rel. Joseph v. LaVallee (Docket No. 32950, decided
December 17, 1968).
Accordingly, we grant respondent's motion to stay the district court's order of
August 3, 1973 releasing relator on bail. Our stay will remain in effect until the
decision of our Court on respondent's appeal from the district court's order of
July 17, 1973. We also order that respondent's appeal in this Court be expedited
as follows: respondent's brief and appendix shall be filed on or before
September 20, 1973; relator's brief and appendix shall be filed on or before
October 10, 1973; and the appeal shall be heard during the week of October 15,
1973.
