The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is an application for bail pending determination of a
petition for habeas corpus.
Petitioner Malcolm Richard was convicted after a jury trial in
the Supreme Court of the State of New York of grand larceny in
the second degree and falsifying business records in the second
degree. The sentence is concurrent prison terms of one to three
years and restitution in the amount of $810,202.29.
After the jury verdict, petitioner filed motions pursuant to
New York Criminal Procedure Law §§ 330.30, 330.40 to set aside
the verdict and pursuant to § 440.10 to vacate the conviction. In
those motions, petitioner presented the argument that the
prosecution had knowingly withheld potentially exculpatory
evidence in violation of the constitutional principles in Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
and its progeny. Petitioner also bases this application for bail
and his petition for habeas corpus on the merits of this Brady
The § 330 motion was denied without an opinion. Justice John
A.K. Bradley issued an opinion on the § 440 motion on June 28,
Pet. Ex. C. Justice Bradley then denied the § 440 motion in its
entirety "except with respect to the exploration of issues
surrounding the 15 cent Lincoln stamp exhibit as to which a
hearing must be held." Pet. Ex. C. Justice Bradley then issued a
second § 440 opinion on August 16, 1988 following the hearing.
The opinion upholds the jury's verdict and finds that no
"misconduct" occurred in relation to the 15 cent Lincoln stamp.
Pet. Ex. D. According to petitioner, the second opinion and the
hearing did not focus on the Brady implications of the 15 cent
stamp, but dealt with issues of "misconduct on the People's
part." Pet. Ex. D. On a consolidated appeal, the Appellate
Division affirmed the two § 440 opinions and the denial of § 330
relief. On January 31, 1990 the Court of Appeals denied leave to
On February 20, 1990, this petition was filed along with an
Order to Show Cause why petitioner should not be released on bail
pending the disposition of the petition. Petitioner also
requested that the Court order the suspension of his sentence
which was scheduled to begin on February 21, 1990. The Court
signed the Order to Show Cause, but refused to order the
suspension of the execution of the sentence in an ex parte
proceeding. In the morning of February 21, 1990, petitioner was
incarcerated and that afternoon attorneys for all parties
appeared before the Court. Oral argument was held on February 21,
1990 and the motion was then adjourned to provide respondents
time to file opposing papers. Memoranda accompanied by exhibits
were submitted and argument was held on March 2, 1990.
Defendant concedes that the Court has the power to grant a
state prisoner's bail application pending the determination of a
habeas corpus petition. Caselaw in this circuit provides a
standard with which to determine such a bail application. In
Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981), the Second
Circuit implicitly adopted the test set forth in Ostrer v.
United States, 584 F.2d 594, 596 n. 1 (2nd Cir. 1978):
[A] habeas petitioner should be granted bail only in
`unusual cases.' Argro v. United States,
505 F.2d 1374, 1377-78 (2d Cir. 1974), or 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), cited in Galante v. Warden,
Metropolitan Correctional Center, 573 F.2d 707 (2d
More recently, Judge Dorsey applied that test through a three
1. Are substantial claims set forth in the petition?
2. Is there a demonstrated likelihood the petition
3. Are there extraordinary circumstances attending
the petitioner's situation which would require the
grant in order to make the writ of habeas ...