United States District Court, Southern District of New York
March 6, 1990
MALCOLM RICHARD, PETITIONER,
ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, AND ROBERT M. MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK COUNTY, RESPONDENTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
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,
An examination of the motion papers and the record
reveals that the evidence was provided to the defense
in sufficient time
for the defense to present it effectively to the jury
for its consideration during trial.
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 corpus
effective, presumably if granted?
In short, is this case distinguishable from other
habeas corpus cases?
Rado v. Meachum, 699 F. Supp. 25
, 26-27 (D.Conn. 1988) (citing
Stepney v. Lopes, 597 F. Supp. 11, 14 (D.Conn. 1984)). The Court
is also guided by Judge Blumenfeld's factors: (1) "an
exceptionally strong candidate for bail" and (2) claims of a
"substantial nature upon which the petitioner has a high
probability of success." Rado v. Manson, 435 F. Supp. 349,
350-51 (D.Conn. 1977).
An essential factor in all those cases is the necessity that
the petition present merits that are more than slightly in
petitioner's favor. While a Brady violation is a serious
constitutional matter, this does not appear to be a case in which
victory for petitioner can be predicted with confidence.
Defendant argues that Justice Bradley's Brady finding in the
June 28, 1988 opinion is a finding of fact entitled to a
presumption of correctness under 28 U.S.C. § 2254(d). See Sumner
v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).
That position is supported by the Fifth Circuit's review of a
petition for habeas corpus based on an alleged Brady violation
in Porretto v. Stalder, 834 F.2d 461, 464
(5th Cir. 1987). The state court in Porretto had made a
post-verdict finding that the non-disclosure of Brady material
did not hamper the effectiveness of the defense's case and did
not affect the verdict. A similar post-verdict finding was made
by Judge Bradley in this case. The Fifth Circuit held that the
state court's post-verdict finding was entitled to a presumption
of correctness when determining whether a Brady violation had
occurred on habeas corpus review. Petitioner has not presented
authority or record cites which dictate that the significant
findings of Justice Bradley should not be accorded the same
The Court recognizes that petitioner may well be able to
overcome Justice Bradley's June 28, 1988 finding by utilizing the
"massive amount of evidence," Pet.Br. at 16 (March 1, 1990),
which he claims came out at the § 440 hearing on prosecutorial
misconduct. In determining whether the merits of this case meet
the high standard for granting bail to a habeas corpus
petitioner, the Court has not had the opportunity to digest
entirely the several thousand page record supplied by the
parties. Thorough review of the record and possibly a hearing are
necessary to determine whether Justice Bradley's decisions were
correct. The merits of this petition will ultimately be
determined by a delicate balancing of the evidence in light of
the principles of both habeas corpus review and Brady. At this
point, however, this is not an exceptional case in which the
Court can determine that there is a "demonstrated likelihood" or
a "high probability" of success. Accordingly, the application for
bail is denied.
IT IS SO ORDERED.