United States of America Ex Rel. Robert Rice, Relator, v. Leon J. Vincent, Superintendent, Green Haven Correctionalfacility, Stormville, New York, Respondent, 486 F.2d 215 (2d Cir. 1973)

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.

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. § 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.

Motion for stay granted; appeal expedited.