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July 17, 1973

UNITED STATES of America ex rel. Robert RICE, Relator,
Leon J. VINCENT, Superintendent, Greenhaven Correctional Facility, Stormville, New York, Respondent

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

Tyler, District Judge.

This is a petition for a writ of habeas corpus sued out by Robert Rice, presently incarcerated at the Greenhaven Correctional Facility in Stormville, New York under life sentence for murder in the first degree, attempted murder in the first degree and attempted robbery in the first degree. *fn1" A new trial is prayed, or, in the alternative, an opportunity by way of an evidentiary hearing to establish the factual allegations set forth as the basis of the application for a new trial. For reasons hereinafter discussed, it is ruled that (1) no evidentiary hearing is required, and (2) the writ will issue unless relator is afforded a new trial within sixty (60) days from the date of this memorandum.


 Robert Rice was one of the original "Harlem Six", six youths accused of the robbery of a small clothing store on West 125th Street in Manhattan, the murder of Margit Sugar and the near murder of her husband, Frank Sugar, the proprietors. *fn2"

 The crimes occurred on April 29, 1964, and the six were tried and convicted in the late spring of 1965. All appealed, but their convictions were affirmed by the Appellate Division, First Department. As to five, Robert Rice, Ronald Felder, William Craig, Daniel Hamm and Walter Thomas, the affirmance was unanimous, and no opinion was written. *fn3" Wallace Baker, the sixth, engendered a 4-2 split among the Justices as his confession, admitted into evidence at the trial, had been extracted by police after his attorney had left the station house, and in spite of that lawyer's explicit instructions that Baker was to make no statements and that he wished to be present at any questioning of his client. *fn4"

 The case was reviewed by the Court of Appeals and the convictions of all of the defendants set aside. *fn5" The principal ground for reversal was the use of statements and confessions of several of the six in ways prejudicial under Bruton v. United States *fn6" to the others. Baker's conviction was set aside on the secondary ground that his confession was in fact inadmissible. Rice, who had confessed, raised the issue of the voluntariness of his statement, but the findings of the trial court on this point were upheld. *fn7" A sweater, introduced into evidence at the trial, was found to have been taken during the course of an illegal search of Rice's residence. *fn8" On this ground, also, the Court of Appeals reversed his conviction. Finally, to avoid Bruton difficulties, severance was ordered as to Rice and Hamm, leaving Baker, whose confession could not be introduced, Felder, Craig and Thomas to be tried as what came to be known as the "Harlem Four."

 The four were retried in early 1971 but the jury could not agree. A third attempt by the State ended on January 27, 1972 with another hung jury; thus, after eight years of incarceration, the four defendants were allowed to go free on bail pending further action. A fourth trial was decided upon by the State, but pleas of guilty to the reduced charge of manslaughter in the first degree and conspiracy were accepted on April 4, 1973. The four were sentenced on that day to time served, and left the courthouse free men. Also, in the interest of fairness, Justice Jacob Grumet ordered that each be issued a certificate of relief from civil liability. *fn9"

 Rice was not as fortunate. Alone of the six, as Hamm ultimately decided to and did plead guilty to lesser included charges, *fn10" Rice was retried and convicted on April 11, 1970 of the counts set forth in the 1964 indictment. Sentencing occurred on September 9, 1970. The conviction, on direct appeal, was affirmed by the Appellate Division, First Department, on May 23, 1972, *fn11" and leave to appeal was granted by the New York Court of Appeals on June 30, 1972. So far as is known to the writer, argument of that appeal has not been heard.

 Subsequent to Rice's second trial, Robert Barnes, Jr., a principal witness for the prosecution, a would-have-been seventh member of the group who, it is asserted, participated in the planning of the crime, recanted his testimony in two lengthy notarized affidavits. Then, during the course of the last actual trial of the "Harlem Four", it was revealed that a fingerprint found at the Sugars' store, identified as that of Robert Rice, had initially been given a "no-value" designation by a police department expert, which label continued for almost a year until reassessed by a different police expert on the eve of the original trial of the six defendants.

 As under New York practice a direct appeal can raise only what is found within the four corners of the record, *fn12" Rice moved, on July 31, 1970, pursuant to § 440.10 of the Criminal Procedure Law to vacate his conviction and obtain a new trial, claiming that on the state of the evidence as then known, the jury might well have reached a different verdict.

 The Supreme Court of New York, New York County, denied the motion in an opinion dated September 10, 1972. *fn13" Rice then sought leave to appeal to the Appellate Division, First Department, which was denied for lack of a substantial question of law or fact on November 21, 1972. *fn14"

 An application for leave to appeal the latter decisions of the trial and intermediate appellate courts was made to the Court of Appeals of New York on November 30, 1972. Four days later, on December 4, 1972, notification was received, signed by the Deputy Clerk of the Court of Appeals, to the effect that the order of the Appellate Division was not appealable. *fn15"

 There being no further recourse available to him in the courts of New York, Rice, on January 19, 1973, presented this collateral attack upon his conviction to this federal district court.


 When Rice was convicted in April, 1970, the People's evidence consisted of a confession signed by Rice, the eyewitness identification of Olin Roe, a clerk at a drugstore adjacent to the Sugars' store, the eye-witness accounts of Barbara and Constance Wright, who were in the same drugstore on an errand for their aunt, the testimony of Robert Barnes, Jr. and the fingerprint of Rice found at the scene of the crime. *fn16"

 A. The Confession

 During the night of April 29, 1964, Robert Rice signed a statement of confession prepared by Detective Joseph E. Halk, and later responded in the presence of a stenographer to questions by Assistant District Attorney Robert J. Lehner. On motion of the defense, Mr. Justice Culkin of the Supreme Court of New York, New York County, on March 31, 1965, determined that the results of the question and answer session were to be suppressed, but allowed the signed statement to be read to the jury. *fn17" This action was affirmed by the Appellate Division and later the Court of Appeals. *fn18"

 The statement described Rice meeting with the other five defendants between 3:30 and 4:00 in the afternoon of April 29, 1964, and the ultimate decision of the group to rob the Sugars' clothing store. Hamm was to be the look-out, and the others were to enter in two waves. Suits, raincoats and any currency that might be found in the cash register were the objects of the venture.

 During the course of the actual attempt, the statement continued, Mr. Sugar panicked, and Felder stabbed him. Rice then pushed Mrs. Sugar to the floor and Felder killed her. All fled, taking nothing with them, and regrouped at the apartment of Rice's grandmother. *fn19"

 Above Rice's signature on the statement were those of Detective Halk and Detective Sergeant Robert Wilson, the officers who conducted the interrogation. ...

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