MEMORANDUM AND ORDER
DEVITT, Chief Judge.
Petitioner, an inmate of Minnesota State Prison since 1963 and one time St. Paul lawyer, has filed a petition for writ of habeas corpus claiming he is held in custody in violation of the Constitution of the United States.
Petitioner was charged by indictment on June 25, 1963, with having caused the murder of his wife. Upon his application, a writ of mandamus was issued by the Minnesota Supreme Court directing a change of venue from Ramsey to Hennepin County. Following a plea of not guilty, petitioner was tried by a jury before Hennepin County District Judge Rolf Fosseen and on December 6, 1963 was found guilty of murder in the first degree. The state district court denied petitioner's motions for new trial and for acquittal notwithstanding the verdict and petitioner appealed. The Minnesota Supreme Court affirmed the judgment of conviction. State v. Thompson, 273 Minn. 1, 139 N.W.2d 490 (1966). The United States Supreme Court denied certiorari. Thompson v. Minnesota, 385 U. S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1966).
Petitioner then sought relief by petition for writ of habeas corpus in this court. Finding the application premature for failure to exhaust available state remedies, the petition was dismissed without prejudice. Thompson v. Tahash, D.C., 286 F.Supp. 663 (1968).
Thereafter, proceedings for post-conviction relief were commenced in state court pursuant to Minn.Stat. 590.01 et seq. A lengthy evidentiary hearing, extending, with continuances, over an eight month period, was conducted by Hennepin County District Judge Douglas K. Amdahl. The trial court found no constitutional merit in petitioner's allegations and denied relief. The Minnesota Supreme Court affirmed. Thompson v. State, 289 Minn. 270, 183 N.W.2d 771 (1971).
Petitioner now returns to this court and renews his claim of violation of federal constitutional rights. In substance his allegations are that: prejudicial publicity prevented his obtaining a fair trial, hearsay testimony was improperly received against him, the prosecutor used illegally obtained evidence, perjured testimony was knowingly used against him, he was wrongfully denied a new trial on the basis of newly discovered evidence, he was inadequately represented by counsel at trial, the prosecution failed to disclose exculpatory evidence to the defense, and the Minnesota courts failed to take protective action sua sponte where events required it before and during trial. In the interest of making a complete record, a detailed statement of petitioner's claims is set out as follows:
"Petitioner states and alleges that he is being held in custody unlawfully due to violations of his Federal Constitutional rights as contained in the Fifth, Ninth, and Fourteenth Amendments in that:
a) The community, and specifically the jury pool from which the petitioner's trial jury was drawn, was so envenomed by sustained prejudicial pre-indictment, pre-trial, and trial publicity as to preclude any reasonable likelihood that a fair jury could be impanelled or fair trial held.
A great amount of daily publicity, commencing the day of petitioner's wife's death, was suspended throughout the community (the entire State) prior to arrest, prior to trial, and during trial through news media of every form; material containing and concerning the prosecutor's theory of petitioner's guilt and the evidence upon which it expected to rely.
b) The prosecutor and police officials made prejudicial pre-indictment and pre-trial statements to the news media charging the guilt of the petitioner.
The prosecutor and police made statements to members of the news media which implicated petitioner as the man responsible for his wife's death including but not limited to statements that:
(1) Larry McMullen, a deputy sheriff, disclosed that Dick W. C. Anderson said he had been hired by Thompson (petitioner) to kill Thompson's wife; that police officials said the Thompson murder was `now solved completely' on the day of Thompson's arrest; and that prosecutor William Randall complained to the news media that Thompson had failed to come to his office to discuss the matter even though Randall was waiting in his office to discuss the matter with him.
c) The prosecutor offered and the court received against the petitioner, hearsay testimony purporting to show admissions which deprived petitioner of his right to confront witnesses against him.
The Prosecution used as part of its evidence, testimony by alleged assassin-conspirators Anderson, Butler, Ingram, Morris, and Sharp that they were hired to kill an unidentified out of town woman with four children (Anderson said that it was Thompson's wife) by one Mastrian, a client of Thompson's, who allegedly said that he was acting for Thompson. Mastrian did not testify and could not be produced since he was then under indictment and awaiting trial for the same murder. No conspiracy was established by evidence extrinsic to the testimony of these five burglars, rapists, and criminal assaulters.
d) The prosecutor used illegally obtained evidence to procure petitioner's conviction.
The St. Paul police searched petitioner's home without probable cause to believe he had committed the crime and without a warrant. Evidence derived from this search was admitted against him over his objection at trial.
e) The prosecutor knowingly used perjured testimony against petitioner.
Anderson, Butler, Ingram, Morris and Sharp denied at petitioner's trial directly or indirectly that they had been promised anything in exchange for the testimony against petitioner. As to each of these men, such denials were untrue because the prosecutor had in fact made elaborate and definitive promises to each as to leniency in their individual cases. The charges pending against each of them, with the exception of Morris, did not arise out of the death of petitioner's wife.
f) Minnesota wrongfully failed to grant petitioner a new trial based on newly discovered evidence which, had it been submitted to a jury, would have changed the judgment of conviction to a judgment of acquittal.
After petitioner's conviction, the chief witness against him, Dick W. C. Anderson, recanted his testimony at trial in two letters to the Governor and in two depositions under oath taken at the prison. He stated that his entire testimony was concocted—with the help of the prosecutor—and that it had been induced by the false and clandestine promises of prosecutor Randall who expected to become, as a result of publicity attending the Thompson conviction and trial, the governor or attorney general of Minnesota and, who, from that high office, would then sharply reduce Anderson's sentence for his admitted murder of Mrs. Thompson. A Motion for New Trial based on this statement by Anderson was denied and so was the appeal therefrom.
g) Petitioner was denied adequate representation by his trial attorney, Hyam Segell.
Petitioner was on trial for his life and had made funds available to his attorney, Hyam Segell, to adequately and properly conduct an investigation with competent, capable investigators who were to be hired directly by Segell and were to report only to Segell— not to the petitioner also—as to the facts surrounding the death of his wife in order to prepare for trial. His attorney did not conduct such an investigation and, in fact, spent one of the funds available just for this purpose. As a condition to representation, Segell made Thompson promise to stay out of the case and not to be looking over his shoulder checking up on him. Such failure to investigate on the part of Segell was not known to the petitioner until after the trial.
h) The prosecutor failed to disclose to petitioner or his attorney exculpatory evidence contained in the prosecutor's file and not known to the petitioner.
There is in existence in the prosecutor's file a blood report showing the presence of a person with a blood type at the scene of the crime that does not match that of Mrs. Thompson or Dick W. C. Anderson, both of whom have type O blood; however, it does match the blood type of one of the alleged assassin-conspirators, to wit: Ingram.
There is also in existence in the prosecutor's file an investigation report, in great detail, of Dick W. C. Anderson conducted by the insurance companies that insured the life of Mrs. Thompson; this report and investigation was conducted at the request of the prosecutor in compliance with part of his promises to Anderson for his testimony as given; that facts in this report refute some of the material testimony of Anderson given at trial. The Minnesota Court refused to allow access to this report upon request and proper showing by the petitioner. The report was completed prior to trial.
i) The Minnesota Courts violated the petitioner's Constitutional rights in their rulings and in their failing to rule sua sponte where necessary to protect the petitioner during the preliminary stages prior to trial and during trial.
Specifically the Minnesota Courts did not protect petitioner's rights in that:
(1) The trial court did not issue any cautionary instruction to the jury prohibiting them from reading or listening to the news about the trial proceedings.
(2) The trial court did not sua sponte sequester the jury even though it was obvious that the jury should be so sequestered to protect them during the trial.
(3) The trial court did not order sua sponte a second change of venue when the need for the same became obvious even though there was in existence
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