Neil v. Biggers Brief for the Petitioner

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971

NO. 71-586

WILLIAM S. NEIL, W arden, 
T ennessee State Penitentiary

P etitio n er

v.

ARCHIE NATHANIEL BIGGERS

ON W RIT OF CERTIO RARI TO THE UNITED STA TES  
COURT OF A P P E A L S FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

BART C . DURHAM, III 
A ss is ta n t A tto rney  General 

211 Suprem e C ourt Building 
N ashville, T ennessee  37219

A ttorney  f o r  P e titio n er

DAVID M . PACK 
A ttorney General

T E N N E SS E E  LAW PR IN T E R S , P . O. Box 277, K noxville, T ennessee, Phone 525-4202

7-3-72-93



INDEX
Page

OPINIONS BELOW ............................................................  1
JURISDICTION................................................................... 2
CONSTITUTIONAL, STATUTORY, AND

RULES PROVISIONS INVOLVED ......................... 2
QUESTIONS PRESENTED ............................................. 5
STATEMENT OF THE CASE ......................................  5

1. H istory  of the L itigation ...............................  5
2. The S ta te 's  C ase A gainst Biggers .............. 7

A. The c rim e  ....................................................  7
B. The a r r e s t  ....................................................  11
C. The identification .......................................  12
D. The tr ia l  ......................................................... 15
E. The federa l habeas corpus

ev identiary  h e a r i n g ...............................  18
SUMMARY OF ARGUMENT ......................................... 24

1. The 4-4  A ffirm ance .........................................  24
2. The Stationhouse Id e n tif ic a tio n .....................  25

ARGUMENT —

1. B iggers' previous conviction, affirm ed 
by th is Court by an equally divided vote, 
b a rre d  fu rth e r rev iew  of the s ta tio n - 
house identification  in a fed era l habeas
corpus h e a rin g .....................................................  25
A. The s ta tu te  ..............................................   25
B. Case law  ...................................................  29

2 . The stationhouse identification of
Biggers was held fa irly  and scrupulously  
and not in derogation of his con­
stitu tional r ig h ts .................................................  31

CONCLUSION ...................................................................  39

l



APPENDICES:

Appendix A - U. S. ex re l R adish  v.
C rim . C t. o f City o f  N  . Y . (2nd C ir. 1972)
(M ulligan, J. D is se n tin g ) ........................................  la

Appendix B -note, 40 C ine . L . Rev. 833
(1971) ............................................................................ 9a

CITATIONS
C a ses:

A nderson v . Johnson, Warden,
390 U .S . 456 (1968) ................................................ 29 ,30

B iggers v . N eil,
448 F .2 d  91 (6th C ir . 1971) ..................................  2

B iggers v . T en n essee ,
219 Tenn. 553, 411 S .W .2d 696 (1 9 6 7 ).............  1,5

B iggers v . T en n essee ,
390 U .S . 404 (1968) ........................................... 1 ,22 ,23

Coleman v . A labam a,
399 U .S . 1 (1970) ...................................................  25,33

Duncan v . T ennessee,
405 U .S . 127 (1972) .................................................  28

Durant v . E sse x  Co .,
74 U .S . 107 (1868) .................................................  29 ,30

E tting  v . United S ta tes B a n k ,
24 U .S . 57 (1826) ...................................................  29 ,30

H ertz v . Woodman
218 U .S . 205 (1910) .................................................  31

Inman v . B a ltim ore  and O. R . R . ,
361 U .S . 138 (1959) .................................................  31

K irby v . I l l in o is ,
406 U .S . ___ (1972) ...................................................  38

P a lm e r  v . Peyton,
359 F . 2d 199 (4th C ir . 1966) ................................ 38

ii



Radich v . New Y o rk ,
401 U .S . 531 (1 9 7 1 )............................................... 27

R o ss  v . Radich,
O .T . 1971 No. 71-1510 ......................................  27

Stovall v . Denno,
388 U .S . 293 (1 9 6 7 )...............................................  25,33

United S tates ex re l Radich v .
C rim inal Court o f New Y o rk ,

___ F . Supp. ____(S .D .N .Y . 1971),
r e v 'd ___ F .2 d ____(2nd C ir . 1 9 7 2 ) .................  27

United States v . P ink,
315 U .S . 203 (1 9 4 2 )...............................................  31

United States v . W orrall,
2 U .S . (2 D a li.)  384 (1798) ...............................  31

Wade v . United S ta tes ,
358 F .2 d  557 (5th C ir . 1 9 6 6 ).............................  33

Washington B ridge Co. v . S tew art,
44 U .S . (3 How.) 413 (1845) .............................  31

CONSTITUTION, STATUTES AND RULES

Constitution of the United States:
F ifth  Amendment .................................................  2
F ourteen th  A m en d m en t........................................  2

S ta tu te s :
28 United States Code §2241 (1966).................. .... 2
28 United States Code §2244 (1 9 6 6 )....................... 3 ,7
28 United States Code §2403 (1 9 4 8 )....................... 3 ,7

R u les  o f  the United S ta tes Suprem e C ourt:

Rule 23 ............................................................................  4
Rule 33 ............................................................................  4

iii



Miscellaneous:
C ollings, Habeas Corpus f o r  Convicts —

Constitutional R ight o r  L eg isla tive  Grace ?
40 C alif. L . Rev. 335 (1 9 5 2 )...............................  28

D evelopm ents in the L aw — Habeas Corpus,
83 H arv . L . R ev. 1038 (1 9 7 0 ).............................  29

PollaJk, P roposals to C urtail Federal 
Habeas Corpus f o r  State P r iso n e rs :
Collateral A ttack  on the Great W rit,
66 Yale L .J . 50 (1956) ..........................................  28

R em ed ies  A ga inst the United S ta tes and
its  O ffic ia ls , 70 H arv. L. Rev. 827 (1 9 5 7 ) ... 28

Senate R eport No. 1797, 89th C ongress,
2nd Session , 1966 Code Cong. & Ad.
News 3663 ................................................................... 27

n o te ,40 U. C in. L . Rev. 819 (1971) ......................  27

IV



IN T H E

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971

NO. 71-586

WILLIAM S. NEIL, W arden,
T ennessee State Penitentiary ,

P etitioner

v .

ARCHIE NATHANIEL BIGGERS

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW
M r. B iggers’ rap e  conviction w as affirm ed  by the T en ­

n essee  Suprem e C ourt. B iggers v . T en n essee , 411 S .W . 
2d 696 (1967) (Pet. C e r t. App. I). This C ourt gran ted  
c e r t io ra r i ,  388 U .S . 909 (1967) (Pet. C e r t. App. H)', a f ­
firm ed  the judgm ent below by an equally divided vote, 
B iggers v . T en n essee , 390 U .S . 404 (1968) (Pet. C e rt. 
App. G); and denied a petition  to re h e a r; 390 U .S . 1037 
(1968) (Pet. C e r t. App. F ). The United S tates D is tric t

1



2

C ourt fo r the Middle D is tric t of T ennessee gran ted  a p e ti­
tion  for the w rit of habeas corpus in unreported  o rd e rs  
(A. 32, A. 45) and the Sixth C ircu it a ffirm ed , B iggers v . 
N eil, 448 F .2 d  91 (6th C ir . 1971) (Pet. C e rt. App. A).

JURISDICTION

The judgm ent of the United States C ourt of Appeals fo r 
the Sixth C ircu it was en tered  August 18, 1971. The p e ti­
tion  fo r c e r t io ra r i  was tim ely  filed O ctober 27, 1971.
This C o u rt's  ju risd ic tio n  is invoked under 28 U .S .C .
§ 1254(1).

CONSTITUTIONAL, STATUTORY AND 
RULES PROVISIONS INVOLVED

The Fifth  Amendm ent to the Constitution of the United 
S tates provides in p ertinen t p a rt:

"No person  shall . . .  be deprived of life , lib e rty , 
o r p ro p erty , without due p ro cess  of law . . . "

The F ourteenth  Amendm ent to  the C onstitution of the 
United S tates provides in pertinen t p a rt:

"No s ta te  shall m ake or enforce any law which shall 
abridge the p riv ileg es  o r im m unities of c itizen s  of the 
United S tates; nor shall any s ta te  deprive any person  
of life, lib e rty , o r p ro p erty , without due p ro cess  of 
law; nor deny to  any person  w ithin its  ju risd ic tio n  the 
equal p ro tec tion  of the law s."

H abeas corpus is codified in T itle  28, United S tates 
Code, which prov ides in p e rtin en t p a rt:

§ 2241. Power to  g ran t w rit

"(a) W rits  of habeas co rpus may be g ran ted  by the 
Suprem e C ourt, any ju s tice  thereo f, the d is tr ic t co u rts



3

and any c irc u it judge w ithin th e ir  resp ec tiv e  ju r isd ic ­
tions . . .
”(c) The w rit of habeas corpus shall not extend to a 
p riso n e r un less  —
"(3) He is  in custody in violation of the Constitution 
o r laws or tre a tie s  of the United S tates . . . "

§2244. F inality  of D eterm ination

"(c) In a habeas corpus proceeding brought in behalf 
of a person  in custody pursuant to the judgm ent of a 
State court, a p r io r  judgm ent of the Suprem e C ourt of 
the United States on an appeal o r rev iew  by a w rit of 
c e r t io ra r i  a t the instance of the p riso n e r of the decision 
of such State co u rt, shall be conclusive a s  to a ll issu es  
of fact o r  law with re sp ec t to an a s s e r te d  denial of a 
F ed e ra l righ t which constitu tes  ground fo r d ischarge  in 
a habeas corpus proceeding, actually  adjudicated by the 
Suprem e C ourt th e re in , un less the applicant fo r the 
w rit of habeas corpus shall plead and the court shall 
find the ex istence of a m a te ria l and contro lling  fact 
which did not appear in the rec o rd  of the proceeding 
in the Suprem e C ourt and the court shall fu r th e r find 
that the applicant fo r the w rit of habeas corpus could 
not have caused such fact to ap p ear in such rec o rd  by 
the ex erc ise  of reasonab le  d iligence."

T itle  28, United States Code, fu r th e r p rovides:

§ 2403. Intervention by United S tates; constitu tional 
question

"In any action , su it or proceeding in a co u rt of the 
United S tates to which the United S tates or any agency, 
o fficer o r em ployee th e reo f is not a pa rty , w herein  the 
constitu tionality  of any Act of C ongress affecting the 
public in te re s t is  draw n in question, the cou rt shall 
ce rtify  such fact to the A ttorney G enera l, and shall



4

p erm it the United S tates to in tervene for p resen ta tion  
of evidence, if evidence is  o therw ise adm issib le  in the 
c ase , and fo r argum ent on the question of constitu tion ­
a lity . The United S tates shall, subject to the applicable 
p rov isions of law, have a ll  the rig h ts  of a pa rty  and be 
sub ject to a ll  liab ilitie s  of a party  a s  to co u rt co sts  to 
the extent n e ce ssa ry  fo r a p ro p er p resen ta tion  of the 
fac ts  and law re la tin g  to  the question of constitu tionality . '

The 1954 ru le s  of th is  C ourt w ere in effect a t the tim e 
the o rig inal w rit of c e r t io r a r i  w as g ran ted , June 12, 1967. 
Rule 23, The Petition fo r C e r tio ra r i ,  rem ained  unchanged 
in pertinen t p a r t by the 1967 am ended ru le s , and w as as  
follows:

"1. The petition  fo r w rit of c e r t io ra r i  shall contain 
in the o rd e r h e re  ind ica ted—

"(c) The questions p resen ted  fo r rev iew , ex p ressed  
in the te rm s  and c ircu m stan ces  of the case  but without 
u n n ecessa ry  d e ta il. The sta tem en t of a question p r e ­
sented w ill be deem ed to include every  subsid ia ry  q u e s ­
tion fa irly  com prised  th e re in . Only the questions se t 
fo rth  in the petition  o r fa irly  com prised  th e re in  w ill 
be considered  by the co u rt."

Rule 33

"(2) (b) In any proceeding in w hatever co u rt a r is in g  
w herein  the constitu tionality  of any Act of C ongress 
affecting  the public in te re s t is  draw n in question and 
the United S tates o r any agency, o fficer o r em ployee 
thereo f is  not a p a rty , a ll in itia l p leadings, m otions 
o r p ap ers  in th is  co u rt shall re c ite  that 28 U .S .C .,
§ 2403 m ay be applicable and shall be se rv ed  upon the 
S o lic ito r G enera l, D epartm ent of Justice , W ashington,
D. C. 20530. In proceedings from  any co u rt of the 
United S tates a s  defined by 28 U .S .C .,  § 451, such 
in itia l pleading, m otion o r paper sh all s ta te  w hether



5

o r not any such co u rt h as, pursuan t to 28 U .S .C . ,
§ 2403, certified  to the A ttorney G eneral the fact that 
the constitu tionality  of such Act of C ongress was drawn 
in q u e s tio n ."

QUESTIONS PRESENTED

I. WHETHER AN AFFIRMANCE BY THE SUPREME 
COURT IN AN EQUALLY DIVIDED OPINION AFFIRMING 
A STATE CONVICTION ACTS AS RES JUDICATA AS TO 
THE SAME ISSUES RAISED IN A SUBSEQUENT PETITION 
FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT.

II. WHETHER RESPONDENT WAS DENIED A FAIR 
TRIAL AS A RESULT OF THE USE OF IDENTIFICATION 
EVIDENCE ALLEGEDLY THE BY-PRODUCT OF AN UN­
CONSTITUTIONAL PROCEDURE.

STATEMENT OF THE CASE

1. H istory o f  the Litigation

Respondent Biggers was identified by M rs. M argare t 
Beam er of Nashville as the man who rap ed  h e r January 22, 
1965. The iden tification  was m ade at the N ashville police 
s ta tio n  on August 17, 1965, and Biggers was charged  with 
ra p e .

Biggers was convicted a f te r  a t r ia l  by ju ry  held Novem ­
b e r 2 9 —D ecem ber 3, 1965. His conviction was affirm ed 
by the T ennessee  Suprem e C ourt in B iggers v . T ennessee, 
219 Tenn. 553, 411 S .W .2d  696 (1967) (Pet. C e r t. A -68).

This Court g ranted  c e r t io ra r i ,  388 U .S . 909 (1967)
(Pet. C ert. A -67) and affirm ed  by an equally divided Court 
4 -4  (Douglas, J . , d issen ting) (M arshall, J . ,  not partic ipa ting),



6

390 U .S . 404 (1968) (Pet. C ert. A-61). A petition  to r e ­
h e a r was denied, 390 U .S . 1037 (Pet. C ert. A -60).

The question upon which c e r t io ra r i  had been granted 
in the 1967 T erm  case  as sta ted  in that e a r l ie r  A pplica­
tion fo r C e r tio ra r i w as:

"The p e titio n e r, a 16 y ear-o ld  Negro boy, was co m ­
pelled  by the po lice , while alone in th e ir  custody at the 
police s ta tio n , to  speak the words spoken by a rap is t 
during  the offense a lm ost eight months [the exact tim e 
was actually  s ix  m onths, tw enty-six  days] e a r l ie r  fo r 
voice identification  by the p ro se cu tr ix . "

"Was the  denial of p e titio n e r 's  rig h t to personal d ig ­
nity and in teg rity  by the police, and the fa ilu re  to give 
him  benefit of counsel, provide him  with a lineup, o r 
with any o ther m eans to a ssu re  an objective, im p artia l 
identification  of his voice by the p ro se cu tr ix  a violation 
of p e titio n e r 's  F ifth , Sixth and F ourteenth  Amendment 
rig h ts? "  (Pet. C e r t. A -8)

The b rie fs  and tra n sc r ip t of re c o rd  filed in that e a r l ie r  
case  m ay be found in Volume 51, T ran sc rip ts  of R ecords 
and F ile  Copies of B riefs, Nos. 232-237, Suprem e Court 
of the United S ta tes , October T e rm  1967. A tra n sc r ip t 
of the o ra l argum ent was subm itted  as Appendix J to the 
p re sen t Petition fo r  C e r tio ra r i .  The documents needed 
fo r co n sid era tio n  of the case  a re  the T ran sc rip ts  of R ec ­
o rd  and Briefs from  the e a r l ie r  c ase , No. 237, O .T . 19671 
(one copy in  Suprem e Court L ib ra ry  and one copy of T ra n ­
sc r ip t of R ecord  an exhibit filed  in this proceeding; cited
as R. ___ ), Petition fo r C e r tio ra r i (containing e a r l ie r
opinions and the Sixth C ircu it opinion), the tra n sc r ip t of 
o ra l argum ent and the Joint Appendix (cited as A. ).

Petitioner's motion to use the original record in Biggers v. Tennessee,
No. 237, O .T . 1967, was granted, 405 U. S. 954 (1972).



7

A fter re h e a rin g  was denied in A pril, 1968, a petition  
fo r w rit of habeas corpus was filed  in July, 1968, in the 
United States D is tric t Court for the Middle D is tric t of 
T ennessee , N ashville D ivision (A. 6) alleging that the 
identification p rocedures v iolated the Due Process Clause 
of the Fourteenth  A m endm ent.

The D is tric t Judge, Hon. W illiam  E. M iller^ denied 
a m otion to d ism iss  (A. 17), saying th is Court "did not 
se ttle  the m erits  of th is c a se , and affirm ed only through 
an equal sp lit in opinion. " (A. 19).

Affidavits w ere subm itted  by Petitioner (A. 24-A . 30), 
and a lim ited  ev identiary  hearing  was o rd e red . (A. 31). 
A fter the Court h eard  testim ony , it  o rd ered  a new tr ia l 
without the stationhouse identification . (A. 32). A m o­
tion  to reco n sid e r based  on the e a r l ie r  adjudication by this 
Court was o v erru led . (A. 45).

The Sixth C ircu it a ffirm ed  in an opinion by Judge E d­
w ards with the concu rrence  of Judge M cRee, with Judge 
Brooks d issen ting . (Pet. C ert. A - l) . T his Court granted 
c e r t io ra r i ,  405 U .S . 954 (Feb. 28, 1972). The Solicitor 
G eneral has not indicated  w hether he w ishes to  ask  the 
Court fo r p e rm iss io n  to in tervene pursuant to 28 U .S .C . 
§2403 to defend the constitu tionaltiy  of 28 U .S .C . § 2244(c).

2. The S ta te 's  Case A ga inst B ig g ers2 3

A . The C rim e

M rs. M argare t B eam er, 39, the m other of five ch ild ren , 
re tu rn ed  to h e r  N ashville home F riday  afternoon, January 
22, 1965, from  h e r job as an LPN at Hubbard H ospital, 
w here she had worked fifteen  y e a r s .
2 Judge Miller is a member of the United States Court of Appeals for the 
Sixth Circuit.

3 The Account which follows is stated as favorable to the theory of the 
State as is supported by the record.



8

H er husband, a law  strident attending night c la sse s  on 
Mondays and F rid ay s  (R. 27), left the house to get som e 
law books about 9:00 p . m . , leaving  h e r  alone in  the house 
with h e r 12 y ear old daughter and 6 y e a r old son.

The ra p is t, who apparently  had been looking down into 
the house from  the  ra ilro a d  track s  outside, en tered  the 
house. (R. 14). T here  is  a hallway n e a r the confluence 
of two bedroom s, a living room , and the k itchen. (R. 9,
12, 13, 21, 22, 33, 34, 83, 87-93). Although the hallway 
its e lf  was unlighted (R. 12), th e re  was "light in the living 
room , light in the bedroom  and light in  [M rs. B eam er's] 
bedroom . " (R. 12). The lighting in her house was "o rd i­
n a ry "  and "w ell-ligh ted . " (R. 14).

The in tru d e r stepped out of the dark  kitchen, grabbed 
M rs . B eam er in the hallway and grappled h e r to the floo r. 
(R. 9). Her s c re a m s  brought h e r twelve year old daughter, 
F ran c e sc a  into the  hallway; but the ra p is t, b rand ish ing  a 
la rg e  shiny knife , o rd e red  M rs. Beam er to te ll h e r  daughter 
to go back into h e r  bedroom , which the daughter d id .4

4 The defense has discounted the daughter's testimony, but this 12 year 
old (age 13 at trial), although unable to identify Biggers, said "he was 
tall, and he was kind of big and dark" (R. 83), "Negro, " (R. 83), and 
"had on a short-sleeved shirt. " (R. 83) The rapist's voice made a par­
ticular impression on her. She described it as "a young voice" (R. 84) 
and distinguished it from the voice of the defense attorney, whom she said 
she supposed had "an old voice. " (R. 97) She noted the rapist had a
silver knife, did not have on a hat, and thought his short-sleeved shirt 
closed at the neck (R. 91).

Her testimony weakens the contention, at least as to this witness, that 
State authorities sought to overreach the defendant with an impermissibly 
suggestive identification practice.

The daughter noted this about the assailant: 1) tall, 2) big, 3) dark,
4) Negro, 5) wore short-sleeved shirt closed at the neck, 6) had no hat, 
and 7) had young voice. The inference is the voice did not fit for the 
size of the man. This was a matter for the jury. Even defense witnesses 
noted what a large person he was to be so young. Biggers testified he was 
5’9" to 6' and weighed 187-200 pounds (R. 112). His stepfather, a de­
fense witness, said Biggers "never did go anywhere" because "he said he 
was overlarge for his age. " (R. 127) A picture of the defendant (never
introduced into evidence, although made an exhibit) is in the record at 
page 197.



9

D uring the scuffle on the  floor of the hallway, M rs. Beam- 
e r  was 'look ing  up in his face . " (R. 14)5 *. She said  th e re
was no light in the kitchen (R. 33) and was asked , "So you 
couldn't have seen  him then? Answer: "Y es, I could see  
h im , when I looked up in  his face . " Question: "In the 
d a rk ?"  Answ er: "He was righ t in the doorw ay— it was 
enough light from  the bedroom  shining through. Yes, I 
could see  who he w as. " (R. 33).

M rs . Beam er and h e r  a ssa ilan t le ft the "w ell-ligh ted" 
house (R. 14) through the dark  kitchen  and went out-

® At this point the District Attorney asked if she were "able to describe 
this man, other than seeing a butcher knife. " She answered, "No, other 
than I remember the blade being shiny. " (R. 14) Here again, the State
argues the witness was taking pains not to overreach the defendant and was 
testifying without malice or vindictiveness.

The tone and timbre of the witnesses, their vindictiveness or lack there­
of, and the confusion as to whether Mrs. Beamer made an in-court identifi­
cation come through cold on the printed record. Appellate lawyers and 
judges can never get the feel of the case which the jury gets, which is all 
the more reason why jury verdicts should be overturned cautiously.

On cross-examination, the defense attorney asked the victim, "You 
could see? No light? And you could see him and know him then?" and 
Mrs. Beamer answered, "Yes." (R. 34).
£

The 12 year old daughter said there was an opening from the living 
room into the hall. The lamp "was next to the chair that was next to the 
door that leads outside. " (R. 89) The defense attorney then asked: In
which corner— northwest or northeast? The witness said northwest. Ap­
parently this was illustrated to the jury (Defense Atty: "In this corner over 
h ere.. .  or in this corner over h ere .. .  ?" R. 89), but reading the cold record, 
one can't tell whether the lamp was by the chair next to the hall where 
Mrs. Beamer was thrown to the floor or whether the lamp was somewhere 
else. (R. 89) "Northwest corner" (R. 89) means nothing. It makes a 
big difference, however, because it corroborates her answer of "Yes" to 
the question on cross-examination: "You could see? No light? You could 
see him and know him?" (R. 34).



10

d o o rs . She te s tif ied , "T here  was a moonlight night, with 
a few c louds. And s tre e t  ligh ts on down on the s tre e t ,  
not on the  tra c k . But it  [the ligh ts] did not extend up over 
the  tra c k . T a lle r  than the tra c k  w a s . " (R. 13). A full
moon was shining b righ tly . (R. 34) Neon s tre e t  lig h ts , 
ca lled  Ben W est7 lig h ts , hung o v er  the tracks  (R. 13). 
illum inating  the way as they walked along the track s  . One 
o r two blocks away from  M rs. B eam er's house (R. 33), in 
a little  wooded a re a  off the tra ck s  (R. 10), the defendant 
held a bu tcher knife over h e r, and standing over h e r with 
the knife lay down with h e r  cheek to  cheek having in te r ­
co u rse  fo r 15 m inu tes. (R. 28). A fter penetra ting  h e r 
sexual organs and reach ing  a c lim ax (R. 60), Biggers le t 
h e r  d re s s  and go back up the ra ilro a d  tra c k . (R. 10, 11). 
Biggers "went off in  the  opposite d irec tion , running. "
(R. 10).

M rs . Beam er said  that when Biggers raped  h e r he had 
on "a sh o rt-s le ev e d  g reen  s h ir t .  As to the type of t ro u s ­
e rs  on, all I can rem em b er, they w ere d a rk . I don 't know 
what c o lo r ." 8 (R. 29).

R eturning hom e and finding h e r  ch ild ren  safe , she called  
the police  (R. 15) who c a r r ie d  h e r  to the hosp ita l. (R. 44). 
The physician  who exam ined her te s tified  at the  tr ia l  she 
had had in te rc o u rse  during the previous th ree  ho u rs . (R. 63)

D uring thefo llow ingm onths the police showed h e r  th irty  
to fo rty  photographs both at home and the police sta tion
n

The name of a former Nashville mayor.

8 A witness called by the defense to testify as to Biggers' good character,
Miss Nina Carter, was a bookkeeper at Meharry Medical College, and ac­
quainted with Mrs. Beamer and her work as an LPN. She testified Mrs.
Beamer was of good character: "Well, I'll say I don't know anything wrong 
about her. " (R. 144) There was no evidence introduced that her testimony
should not be entitled to full faith and credit in a court of law.



11

(R. 15, 39) but only one even had fea tu res  like the ra p is t. 
(R. 15). Then, six  months and tw enty-six  days a fte r h e r  
a ttack , the N ashville Police solved the c a se .

B . The A r r e s t

The tr ia l  testim ony concerning the a r r e s t  and su b se ­
quent developm ents, such as Biggers being declared  in c o r­
rig ib le  by the Juvenile C ourt, m ake sense only when su p ­
plem ented with the affidavits of B iggers, his m other, and 
his a tto rney  filed  a t the federal habeas corpus hearing .
(A. 24-30). When these  a re  com bined, the S tate’s case  
is  as follows:

B iggers, while receiv ing  em ergency trea tm en t at Hub­
b a rd  Hospital about 10:30 p .m . August 16, 1965, was q u e s ­
tioned about a cut a rm . (A. 26). The attem pted rape  of 
M rs . C a rr ie  D. S ilverm an, a re s id en t of the Bordeaux 
a re a  of N ashville, was a lso  being investigated  at this 
tim e . (A. 29). Biggers was taken to the home of M rs. 
S ilverm an in  Bordeaux (R. 51; A. 29) w here, according 
to his affidavit (A. 29) "M rs. S ilverm an attem pted but 
could not identify [m e ]."  However, O fficer Cathey t e s ­
tif ied  at the tr ia l  out of the  p re sen ce  of the ju ry , that on 
the case  tha t "happened on Cliff D rive [the S ilverm an 
attem pted  rape] . . .  we had a positive  identification , you 
s e e ."  (R. 55). The next m orning, August 17, the 
Juvenile Court d ec la red  Biggers in co rrig ib le  because of 
the Silverm an attem pted rape  and bound him over fo r t r ia l  
as an adult. (R. 52, 55; A. 28; B iggers' m other in her 
affidavit sa id  she was told by the police  that h e r son was 
"identified by a lady in Bordeaux on the  charge of assau lt 
with intent to rav ish  and a lso  by a Negro woman on a 
charge  of rap e  and tha t he could not be re le a se d . ")



12

E stab lish ing  the "positive identification" (R . 55) of 
Biggers in the S ilverm an a ssa u lt took from  10:30 p .m .
(A . 29) until m idnight o r  sh o rtly  th e re a f te r  . Biggers 
was a r re s te d  about 1:30 a .m . (R . 51) and lodged o v e r ­
night with the Juvenile C ourt night attendant for safekee- 
ing. (A . 30).

On the m orning  of August 17, he was decla red  in c o r­
rig ib le  (R . 52) and taken to the police station  by o fficers  
Cathey and Hamm, w orking under the d irec tion  of L t. M c­
D aniel. (R . 52). O fficers Smith and B erry brought M r s . 
Beam er to h e a d q u a r te rs . (R . 39). The stage was thus set 
fo r the confrontation between M rs . Beamer and the defendan t.

C . The Identification

The o ffice rs  who picked M rs . Beamer up a t h e r home 
the m orning  of August 16, s ta ted , "We had a suspect we 
would like h e r  to look a t and see if she could identify h im ."
(R . 40). Defense counsel tr ie d  to m axim ize the su g g es ti­
b ility  of the w itn ess , but she s ta ted , "I identified the su s-

Q

p e c t . They d id n ’t point him  o u t."

The c ircu m stan ces  of the police station  identification 
w ere  a s  follows:

Although no notice has been taken of this, Mrs. Beamer perhaps saw 
Biggers first at the Juvenile Court prior to the stationhouse identification. 
Biggers at one point testified: Q. "Where were you when you first saw
Mrs. Beamer?" A. "At the Juvenile. " Q. "At Juvenile Court? What 
day was that?" A. "Oh, I don't really know. " (R. 107) At another 
place in the record, Mrs. Beamer on cross-examination mentioned she had 
testified at the juvenile court (R. 24). Then apparently speaking of the 
police station identification, although this is unclear, defense counsel 
asked: "And that was the second time you were allowed to see him?"
(R. 24) Mrs. Beamer answered: "That is correct. " (R. 25).



13

At the  police station , M rs . B eam er, with another woman 
whose identity the rec o rd  does not re v ea l, waited to iden­
tify  Biggers in  a room  off a long hallw ay. (R. 66, 73). 
B iggers' testim ony was: "I was in a room  all by m yself 
with another detective, R . B. Owen, and L t. — 1 think it 
was Sgt. Woods com e in  th e re  and got m e, and c a r r ie d  me 
to the room  w here she [M rs. Beam er] w as. And th e re  
was another woman with h e r . And 1 was facing h e r, ju s t 
like  1 am facing th is speaker righ t h e re , and she looked 
a t m e, and then she told him  to te ll me to say , — uh —
Stop, o r  I 'll  k ill you. Something like th a t. And Woods 
to ld  me to say i t .  And I hesita ted  fo r a m inute, and then 
he sa id , Say i t ,  Son, and I sa id  i t .  And then she nodded 
h e r  head like  th is . " (R . 107-108).

T h ree  policem en testified  M rs. Beam er identified the 
defendant. D etective Smith rem em b ered  she said , "That 
is  the m an" without ever hearing  the defendant speak .
(R. 40). L t. McDaniel sa id  she identified Biggers without 
any hesitation: "M rs. Beam er was in the office d irec tly  
a c ro ss  from  m ine, and we had the defendant com e and 
s ta n d — walk up the hall and then com e an d — com e back 
and stand  in  fron t of the  room , which, without any h e s ita ­
tion , s h e -----(R. 66). When asked what happened when
the defendant was asked to  ta lk , the o ffice r said : "Right 
a t that tim e  when she id en -, saw  him , she asked us to 
have him rep ea t a question  which he rep ea ted . T hat, 
and she a lso  by voice, y e s , s i r . "  (R. 66). L t. McDaniel 
was asked , "You brought her down to identify that one 
su b jec t?"  and he answ ered , "T hat's  r ig h t. He walked 
by the door opening— h e r — w here she was s itting  the 
door was open, which ano ther lady was s ittin g  in the o f­
fice  a l s o , -----."  (R. 73).



14

The th ird  police w itness who testified  concerning the 
identification 10 was D etective Bailey. He unequivocally 
said  M rs . Beam er identified B iggers, not by vo ice, but 
"by looking a t  h im , and said  he was the one ." (R . 79). 
D etective Bailey answ ered , "Y es, s i r ,"  when asked ,
"Had she identified him  before  he was ever asked to talk?"

M rs . Beam er w as asked  a t t r ia l ,  "What physical c h a r ­
a c te r is t ic s ,  if a'ny, caused  you to be able to identify him ?" 
She rep lied , " F ir s t  of a ll ,  — uh— his s ize , — next I could 
rem em b er h is v o ic e ." (R . 17)11. She testified  generally  
and positively  that she identified Biggers a t the police s t a ­
tion on August 17. (R . 16-19). The physical c h a ra c te r is tic s  
M rs . Beam er testified  to w ere  B iggers' face: "No, when
he placed h is face against m in e — that w as ano ther thing, 
h is  skin was ra th e r  sm ooth, a s ,  you know, som eone that 
d idn 't sh av e ."  (R . 18). [Biggers on c ro ss-ex am in a tio n  
was asked  by the D is tr ic t A ttorney: "You haven 't s ta r ted
shaving ye t, have you?" A . "No, s i r "  (R . 112)]; h is 
size: "W ell, a s  I sa id , the s iz e . He h a d — well a t the
tim e he raped  m e , h is  sh ir t  was unfastened, and he had a 
la rg e  kind of flabby abdom en and b re a s ts  ." "Kind of flabby 
big b re a s ts  . As I say , the abdom en was fa t ."  (R . 19);

12h is  h a ir  ("Sort of bushy" R . 18); and la stly , h is  vo ice. * 12

^  Only two other policemen testified. Officer Black's testimony concerned 
events long before the Biggers arrest. (R. 103-106) Officer Cathey was asked, 
"Were you, yourself, present at any tim e when anyone attempted to make an 
identification of Mr. Biggers?" and answered, "Well, I was in and out of the 
room, General. I cannot say— as far as being there. " (R. 48).

All the witnesses (three policemen and Mrs. Beamer) said she first identi­
fied the defendant by his appearance and then later he was asked by Mrs. 
Beamer to speak the words of the rapist. Even Biggers' testimony is not to 
the contrary.

12
She said it was a "medium-pitched voice of a young man not an old man, 

not mature." Q. "Was it loud, or soft?" A. "He talked soft. " (R. 17).
This is apparently an accurate description to the extent that such information 
can be gleaned from a printed record. The attorney for Biggers opened his 
examination of Biggers as follows: Q. "Now, talk so I can hear you. " A.
"Yes, sir." Q. "Now, you are talking o. k. " (R. 104).



15

D . The Trial

The State brought the defendant to tr ia l  on November 
29, 1965, following the a r r e s t  on August 17. He was 
rep re sen ted  by two re ta ined  attorneys . The tr ia l  began 
on Monday, Novem ber 29, and concluded F rid ay , D ecem ­
b e r  3 . The ju ry  found the defendant guilty and recom  - 
mended a sentence of twenty y ears  which was im posed by 
the  C ourt. In accordance with T ennessee law he was 
sentenced  to the State Vocational T ra in in g  School fo r Boys 
and upon reach ing  h is m ajority  was tra n s fe r re d  to the 
T ennessee  State P rison . (R. 187).

The S ta te 's  proof was as h e re to fo re  detailed , except 
th e re  was no m ention made of the S ilverm an rape attem pt.

The defendant te stified  and denied the c rim e , saying 
he could not rem em b er his ac tiv ities  the night of January 
22.. Six w itnesses te s tified  to his good c h a ra c te r . The 
defense sought by the testim ony of the defendant's m other, 
s tep fa th e r, and acquaintances to e stab lish  that defendant 
was unlikely to have com m itted  the c rim e  because no one 
could get him  to leave his hom e.

The defendant's w itnesses sketched a p o r tra it  of a m a l­
adjusted  child  living as a re c lu se . His m other sa id , "He 
ju s t stayed at hom e. I couldn 't get him  to leave home.
. . .  I ju st couldn 't get him  to leave , no m a tte r what we 
did. We tr ie d , but I ju s t couldn 't get him  out. " (R. 117).
His s tep fa th e r said  Biggers "stayed at home of [sic ] the 
tim e  cause we couldn 't get him  to go a n y w h ere ." (R. 126).
When asked why, he sa id , "W ell, a t f i r s t  he s a id — uh —  
his b rea th  sm elled . H e— u h — and he a lso  sa id  he was 
o v e rla rg e  fo r h is age. " (R. 127). M rs. Leftwich, a
neighbor, testified :



16

"Well, the only th ing tha t I can say is  tha t when I go 
into the hom e, usually  he would m eet me a t the door, 
o r h is  m o ther would te ll him  to com e to the door, and 
he alw ays m et m e and spoke, and som etim es, a f te r  he 
would speak he would go to  the back, and I would say, 
N athaniel, w hat's  happening? I ’d say, W hat's happen­
ing why you a re  leaving the door, he said , M rs. D aniel, 
— th a t 's  my c a r e e r  nam e is D aniel— he says tha t I'm  
so big, I 'm  asham ed of m yself, and I said , But y o u 're  
handsom e. Y ou 're  ta ll and handsom e. A lot of men 
would d e s ire  to  be the height and the s ize  of you, that 
you a r e .  And so , from  then on, he alw ays would talk  
to m e ."  (R. 155).

Another defense w itness, a neighbor, M rs. M cCain, 
gave th is testim ony:

"Well, I h ad n 't seen  th is  child righ t then, but a few 
days la te r  I began to see Nathaniel B iggers, and of 
co u rse  by him  staying in the house a ll day like he did,
I w ondered about h im , and I began to watch to see if 
h e 'd  stay  in when h is m other would te ll him  to . W ell,
I never would see him  come out doors fo r he looked a t 
te lev ision  a ll  day long, and occasionally  I would see 
him  look out the window, a ll day. That went on fo r 
about a y e a r , and we began to  w orry  about him  and 
wonder what w as wrong with a boy that la rg e  staying 
in, because she le ft, sh e 'd  say, Keep the doors locked, 
but every  tim e anybody knocked on the door over th e re , 
n a tu ra lly  w e’d see  it, because we was righ t on the fron t, 
my husband’s bedroom  and m ine, rig h t on the fron t.
And w e'd  look out to see  what was happening. He 
w ouldn't com e to  the door but shortly  a f te r  the perso n  
would leave, he would com e to the door and look out." 
(R. 161-162).



17

M rs. A lsup, a neighbor called  as a defense w itness, 
had th is to say about the defendant:

"And they told me about th is boy [BiggersJ. Well I got 
concerned about h im , and he w orried  me cause all he 
would do was stay  a t hom e, and come to the door and 
look out. If anyone come up, he wouldn't answ er the 
door, then he 'd  wait t ill  they would leave , and then he 
would com e to the d o o r . And answ er the d o o r. And 
I sa id , W ell, why couldn 't he com e then? And it w o r­
ried  m e — but he was always at hom e, and it w orried  
me why did he stay  at home so much, and not get out 
and caro u se  up and down the s tre e t  lik e  the r e s t  of the 
boys. And I would lay th e re  and fu ss , and I w orried  
and I w orried  and I w orried  about him , till it ju s t made 
me s ick , and the D octor sa id , W ell, y o u 're  ju s t going 
to have to quit w orry ing  about that boy. 1 sa id , How 
can I? I sa id , H e's a boy, and it w o rries  m e. Be­
c a u s e —

"Q Was h e -----
"A He didn 't go anyw here night o r  day.
"Q Uh-huh? Uh-huh?
"A And it was enough to make you concerned about 

h im .
"Q Did you d iscuss it  with his m other?
"A No. 1 —  I —  I w asn 't able to get out.
"Q Uh-huh?
"A But 1 said  when I did get out, I sa id , 1 am su re  

going out som ew here. And why does she keep him 
housed up like tha t?  All the tim e?"  (R. 169-170).

The State estab lished  on c ro ss-ex am in a tio n  of the d e ­
fendan t's  s tep fa ther tha t the defendant's home was only 
two blocks away from  W hite 's Lunch Room. (R. 131, 132, 
136) M rs . B eam er, a fte r being raped , called  the police 
using the phone at W hite's Lunch Room. (R.



18

15, 23). She said : "I went to White [s ic ] Lunch Room, 
and i t ’s about th ree  o r four doors down— in fac t, i t 's  two 
doors down from  w here I was — my h o u se---- . " (R. 23).

A question claim ed by som e not to be fully answ ered in 
the tr ia l  t ra n s c r ip t  is w hether M rs. Beam er m ade an in ­
courtroom  identification . The D is tric t A ttorney asked 
h e r , "A re you te llin g  th is Jury today that you have any 
doubt about th is?  O r do you have any doubt about th is? "  
A nsw er: "No, I don 't have any doubt. " (R. 17). L a te r
the  tr ia l  judge asked  M rs. B eam er, "Is th e re  any doubt 
in your mind today?" A fter an objection was m ade by d e ­
fense counsel, the judge asked her again: "All r ig h t. Is 
th e re  any doubt in  your mind today?" M rs. Beam er said , 
"No, th e re ’s no doubt. " (R. 19).

The State contended when th is case  was before  th is Court 
prev iously  tha t M rs . Beam er m ade an in -co u rtro o m  id en ti­
fica tion . M r. Justice Douglas in his d issen t d isag reed , 
saying, "The in ference  to  be draw n is tha t M rs . Beam er 
had no c u rre n t doubt as to the c o rre c tn e ss  of h e r previous 
iden tification  of p e titioner at the police s ta t io n .” 390 U .S . 
at 406 n. 2.

E . The F ederal Habeas Corpus E viden tiary  Hearing

A fter a petition  fo r reh earin g  was denied A pril 22, 1968, 
390 U .S . 1037, a pe tition  fo r the  fed era l w rit of habeas 
co rpus was filed  July 1, 1968, alleging, in te r  a lia , an im ­
p ro p e r stationhouse identification  of B iggers. (A. 6-16).

The Court o rd e red  a lim ited  ev identiary  hearin g  which 
am plified  the availab le inform ation a g rea t dea l.13 One

13 The order read: "(T)he Court desires open court testimony on the follow­
ing matters: the nature of the 'show-up' identification process as opposed 
to the 'line-up' identification process, and why the former process was 
employed in the instant case; and, the general reliability of voice identifi-

(Continued on following page)



19

po licem an 's  notes said  that M rs . Beam er described  her 
a ssa ila n t a s  6 ’ ta ll, 180 pounds, d a rk  h a ir , with a medium 
to d a rk  brown com plexion.14 (A. 74). M rs . Beam er r e ­
m em bered  that a t  the tim e of the rap e  she d escribed  her 
a ssa ilan t in th is  m anner:

1. T eenager
2 . Age 16-18
3. 180-200 pounds
4 . D ark brown com plexion
5 . Bushy h a ir  but not like an Afro
6. Height 5 ' 10" to 6 ’
7 . Smooth face of som eone who d idn 't shave much
8. Voice of a teenager before he reach es  adulthood 

and the voice gets deep . (A. 124-125).

Between the a ssa u lt on January  22 and the identification 
of Biggers on August 17 the police brought individuals and 
p ic tu res  to M rs . B eam er's  home fo r identification, and 'she 
attended sev e ra l police sta tion  lineups containing four o r 
five m en d re sse d  a l ik e . (A. 81, 83, 124, 130).

On the evening of August 16, 1965, while Biggers was 
rece iv in g  c a re  a t Hubbard H ospital fo r a cut a rm  (affida­
v its  A . 24-30; testim ony A . 76), M rs . S ilverm an, the

(Continued from preceding page)

cation procedures, and their relative importance compared with other 
methods of identification in linking the petitioner to the offense alleged 
in the instant action. "

14 Both the State’s attorney and Biggers’ attorney frustrated Judge Miller’s 
efforts to e lic it from the police witness what description she had given of 
her assailant. The State's attorney misunderstood what Judge Miller was 
asking the witness (A. 87) and then again interrupted an answer to advise 
the Court that Mrs. Beamer was to be a witness, which was irrelevant (A. 87). 
Biggers' attorney advised the Court that Mrs. Beamer did not testify about 
the assailant's dress (A. 87), here again getting off the subject. Actually 
Mrs. Beamer said the rapist wore a green shirt and dark trousers (R. 29).



20

victim  of a rap e  a ttem p t, w as a patient a t Baptist H ospital.
(A . 76). B iggers, who had becom e a suspec t, took the 
o ffice rs  to the scene of the Silverm an attem pted rap e  and
reen ac ted  the c r im e .15 16 17 He was held that night on th is

16c rim e  under a techn ical charge of " lo ite rin g ."  (A. 81).

The next m orning , August 17, two o fficers  brought M rs . 
Beam er to police h ead q u arte rs  to look a t a su spec t. 7(A. 129). 
Biggers was in a room  used by D r . C o re , and M rs . Beamer 
was in an office down the hall la te r  used by the serg ean t 
of d e tec tiv e . (A. 78). Two black policem en in plain clo thes

15
Biggers was charged but never tried on this attempted rape. In his affi­

davit, he denies everything. The prosecution for the Silverman attempted 
rape was dropped after Biggers’ conviction and twenty year sentence in this 
case. It is important to remember that the trial jury heard only about the 
rape of Mrs. Beamer. The order granting the limited federal habeas hear­
ing precluded the state from introducing any evidence about the Silverman 
assault. For the text of that order see n. 13 supra.
16

Formal charges of attempted rape (Mrs. Silverman) (A. 77) and rape 
(Mrs. Beamer) were subsequently placed before the Juvenile Court. (R. 52,
55) Biggers' counsel seems to imply the police acted improperly by charg­
ing him with "loitering. " If it is necessary to detail a 16 year old until he 
can be presented to a Juvenile Judge the following day, it would seem better 
to hold him on a technical charge of "loitering" than on a charge of 
"attempted rape" which would be a blot on his record forever, even if 
unfounded.

17 Apparently there is a typographical error in the transcript. Mrs. Beamer 
said (A. 123): "I was told they had some suspects (sic), and if I recognized 
this suspect, just to look at him and see if I could recognize him . . . "
Biggers' counsel apparently understood her to say "suspect" (singular) for on 
cross-examination he asked: "Now you said that the officers mentioned 
that they had a suspect that they wanted you to see. "

This is the only difference, if indeed this be a difference, between Mrs. 
Beamer's trial testimony and habeas testimony that the State can find. 
Everything else, except as pertains to the Silverman rape, is uncontroverted 
(including the testimony of the police officers, discussed post).

The trial judge incorrectly said in his Order of April 17, 1970 (A. 34):
"As to what transpired at the show-up, there is some conflict between the 
testimony given by Mrs. Beamer at the trial and that given by her at the 
evidentiary hearing held in this court on October 30, 1969.)



21

(Sgt. Woods and O fficer Bailey) led  Biggers p ast the door 
w here M rs. Beam er was seated  with an unidentified woman 
and the policem an in ch arge , Captain M cD aniel. (A. 79-
80). M rs. Beam er im m ediately  recognized Biggers as h e r 
ra p is t without ever having heard  him  speak . (A. 80, 123, 
124, 129, 134). A fter identifying him  by his appearance, 
she asked  the officers to have him  rep eat the w ords, "Shut 
up o r I ’ll k ill you" (A. 80, 123, 124, 129, 133), which 
made h e r  even m ore  c e r ta in  in h e r identification . (A. 129). 
The foregoing proof given at the habeas corpus hearing  was 
uncontroverted . Biggers te stified  at the tr ia l  concerning 
the confrontation, and his testim ony is  not con trad ic to ry .
(R. 108).

O ther uncontroverted  evidence offered  at the habeas 
corpus hearing  was th a t Captain McDaniel attem pted to 
a rran g e  a lineup. On an average day th e re  a re  100 people 
in  the M etro ja il , an adult fac ility , and a m axim um  of 50 
boys and g ir ls  at the juvenile ja il .  (A. 69). Captain M c­
Daniel co n fe rred  with Judge Tatum  of the Juvenile Court 
but was unable to find anyone of B iggers’ s ta tu re . (A. 70). 
He telephoned his su p erio r officer at the ja il likew ise w ith ­
out re s u lts . (A. 75). Captain McDaniel found the adults 
a t the ja il com parable in  s ize  with Biggers w ere too old, 
and the juveniles in the Juvenile Detention C enter w ere too 
sm a ll. (A. 72).

M rs . Beam er sa id  she positively  identified Biggers at 
the t r i a l .  (A. 122). She had no doubt in h e r  mind at the 
tim e  of the t r ia l .  (A. 123). When asked what she m eant 
at the tr ia l  when she said  she had no doubt, she sa id , "I 
had no doubt because  I was su re  that th is is  the one. " (A. 
127). She said , "He had the sam e face , th is  is  the sam e 
m an that attacked m e, because he looks the sam e, the 
sam e face , the sam e bu ild , the sam e co lo r, the sam e h a ir , 
and the sam e age when I viewed h im . " (A. 128). On



22

cro ss-ex am in a tio n  when asked  if she had identified Biggers 
a t the tr ia l ,  she said , "I c an 't re c a ll  w hether I pointed my 
finger, but I was asked  if that was the man, and if that is 
him  over th e re , and th e re  was som e way that I indicated 
that M r. Biggers w as the individual." (A. 131).

D r. Irw in Pollock, a psychology p ro fe sso r a t the U ni­
v e rs ity  of M ichigan with sp ec ia l ex p ertise  in aud ito ry  p e r ­
ception, te stified  a s  B iggers' expert w itness. F rom  h is  
study of the re c o rd  in th is  C ourt in 1968 in B iggers v.. 
T en n essee , he found many fac to rs  he thought p re ju d ic ia l, 
am ong them :

a) one to one confrontation (A. 92)

b) lapse  of tim e  (A. 92)

c) Defendant w as identified a s  a su spect to M rs. 
Beam er (A. 93)

d) Defendant w as req u ested  to u tte r  a specific  s ta te ­
m ent, "Shut up o r I 'l l  k ill you," which had em o ­
tional connotations (A. 93)

e) M rs. Beam er was surrounded by police o fficers 
perhaps intent "in finding fo r a  p a r tic u la r  suspect"  
(A. 93)

D r. Pollock ch a rac te riz ed  the p rocedure  used  as  a  y e s-  
no p rocedure  which he called  in fe rio r  to  a "forced  choice" 
p rocedure  (A. 93) and noted that aud ito ry  m em ory is  not 
a s  good a s  v isual m em o ry . (A. 96). D r. Pollock adm itted  
on c ro ss-ex am in a tio n  tha t he had assu m ed  that M rs. 
B eam er's  p rim e  mode of identification  had been auditory . 
(A. 103).



23

B iggers ' m other te stified  the police took h e r son away 
from  the hospital the night of August 16 and kept him  until 
she saw him at Juvenile Court at th re e  o r four o 'clock the 
next m orning. (A. 120). At about 8:00 a .m . ,  she  re ta ined  
an a tto rn ey . (A. 121).

The D is tric t Judge took the  case  under advisem ent in 
Novem ber and the following A pril o rd e red  a new tr ia l 
"unaffected by M rs. B eam er's  stationhouse identification 
and the testim ony of the police o fficers who w ere p resen t 
when it took p lace , " quoting the d issen t of M r. Justice 
Douglas, B iggers v . T ennessee, 390 U .S . 404, 409 (1968). 
(A. 32-43).

In another o rd e r en tered  a few weeks la te r ,  the Court 
o v erru led  the S ta te 's  contention that the 4-4 affirm ance 
by th is  Court was re s  ju d ica ta . (A. 45-51).



24

SUMMARY OF ARGUMENT

1. The 4 -4  A ffirm a n ce

This Court in 1968 gave p lenary  considera tion  to the 
stationhouse identification . The affirm ance, even though 
by a divided C ourt, is re s  judicata  as between the p a rtie s  
as to the sam e issu e  a ffirm ed  by the C ourt.

The considera tion  th is Court gave in  1968 to the s ta tio n - 
house identification  is a factual question . The b rie fs  and 
the tra n s c r ip t  of o ra l argum ent show that a ll aspects of 
the identification w ere fully considered . The c e r tio ra r i  
g ran t did not lim it the question to voice identification, p a r ­
ticu la rly  in view of Rule 23 of th is Court which says that 
a s ta tem en t of a question p resen ted  is deem ed to include 
every  su bsid ia ry  question fa irly  com prised  th e re in .

In 1966 C ongress enacted 28 U .S .C . §2244(c). The 
s ta tu te  p ro v id es :

"In a habeas corpus proceeding brought in behalf 
of a perso n  in  custody pursuan t to the judgm ent of a 
State co u rt, a p r io r  judgment of the Suprem e Court of 
the United States on an appeal o r  rev iew  by a w rit of 
c e r t io ra r i  at the instance of the p riso n e r of the decision 
of such State cou rt, shall be conclusive as to all issues 
of fac t o r  law with re sp ec t to an a s se r te d  denial of a 
F ed e ra l righ t which constitu tes ground fo r d ischarge 
in  a habeas corpus proceeding, actually  adjudicated by 
the Suprem e Court th e re in , unless the applicant fo r 
the w rit of habeas corpus shall plead and the court 
shall find the ex istence  of a m a te ria l and contro lling  
fac t which did not appear in the rec o rd  of the p ro ceed ­
ing in the Suprem e Court and the court shall fu rth e r 
find that the applicant fo r the w rit of habeas corpus 
could not have caused  such fact to appear in such 
re c o rd  by the ex e rc ise  of reasonab le  d ilig e n c e ."



25

The sta tu te  b a rs  any re lie f  fo r  Biggers through federal 
habeas corpus as to the stationhouse identification .

2 . The Stationhouse Identification

The D is tric t Court made erroneous findings of fact in 
read ing  the 1965 tr ia l  tra n s c r ip t .  T hese  findings a re  plain 
e r r o r  and do not support an o rd e r g ranting  a new tr ia l ex ­
cluding the stationhouse identification . Both low er 
c o u rts ' assay s  of the fac ts  a re  dem onstrably  inaccura te  
in  sev era l c r itic a l a re a s .  The S tate’s evidence at the fe d ­
e ra l habeas corpus hearin g , though uncontradicted , was 
d is reg ard ed  and was even said  to conflict with the 1965 
tr ia l  re c o rd  when a read ing  of the two shows they a re  co m ­
plim entary, not conflicting.

The identification  below was le s s  suggestive than the 
ones approved in  Coleman v . A labam a, 399 U .S . 1 (1970) 
and Stovall v . Denno, 388 U .S . 293 (1967).

ARGUMENT

1. B ig g ers ' p revious conviction, a ffirm ed  by th is Court 
by an equally divided vo te, barred fu r th e r  review  o f the s ta ­
tionhouse identification in a fe d era l habeas corpus hearing.

A . The S ta tu te .

T itle  28, U .S .C . §2244(c) (Supp. IV, 1969), am ending  
28 U .S .C . §2244 (1964) provides:

"(c) In a habeas corpus p roceeding  brought in behalf 
of a p e rso n  in custody pursuan t to the judgm ent of a 
State co u rt, a p r io r  judgm ent of the Suprem e Court of 
the  United States on an appeal o r  rev iew  by a w rit of 
c e r t io ra r i  at the instance  of the p riso n e r of the d e ­
cision  of such State co u rt, shall be  conclusive as to 
all is su e s  of fac t o r law with re sp ec t to  an a s se r te d



26

denial of a F ed era l righ t which constitu tes ground fo r 
d ischarge  in  a habeas corpus proceeding, actually  a d ­
judicated  by the Supreme Court th e re in , unless the a p ­
p licant fo r the w rit of habeas corpus shall plead and 
the co u rt shall find the ex istence of a m a te ria l and con­
tro llin g  fact which did not appear in the  re c o rd  of the 
proceed ing  in the Suprem e Court and the court shall 
fu r th e r find tha t the applicant fo r the w rit of habeas 
corpus could not have caused  such fac t to appear in 
such re c o rd  by the ex erc ise  of reasonab le  d ilig en ce ."

The Senate R eport on th is am endm ent says:

"The new subsection  (c) provides tha t when a habeas 
corpus proceed ing  is brought in behalf of a perso n  in 
custody under a judgm ent of a State co u rt, a p r io r  
judgm ent of the Suprem e Court of the United States on 
an appeal o r  rev iew  by a w rit of c e r t io ra r i  brought by 
the  p r iso n e r  will be conclusive as to  all is su e s  of fact 
and law concern ing  an alleged denial of a F edera l righ t 
tha t w ere actually  adjudicated by the Suprem e C ourt. 
T h e re  is an exception to the conclusiveness of th is p r e ­
sum ption if the  applicant fo r the w rit pleads and proves 
the ex istence  of a m a te ria lly  contro lling  fact that did 
not ap p ear in  the re c o rd  of the proceed ing  before  the 
Suprem e Court and that he, the applicant, could not 
have caused to  appear in such a re c o rd  by the ex erc ise  
of reasonab le  d iligence. This subsection  is  intended 
to give a conclusive presum ption  only to actual ad jud i­
cations of F ed e ra l r ig h ts , by the Suprem e C ourt, and 
not to give such a p resum ption  to m ere  denials of w rits 
of c e r t io r a r i .

"The purpose of these  new subsections is to add to 
section  2244 of T itle  28, United States Code, prov isions 
fo r  a qualified application of the doctrine  of re s  ju d ica ta . "



27

S. R ep. No. 1797, 89th C ong ., 2d 
S ess ., 1966 U .S . Code Cong, and 
A d. News 3663, 3664.

The Habeas C orpus C om m ittee, chaired  by Senior C i r ­
cu it Judge O rie L . Phillips of the Tenth C ircu it, was co m ­
posed of fed era l judges who considered  these reco m m en d a­
tions to be consisten t with th is  C o u rt's  habeas corpus ru l in g s . 
Judge Phillips re fe r re d  to the m easu re  in a le tte r to Senator 
Joseph D . Tydings, Septem ber 24, 1966, in S . R ep. No. 1797, 
89th C ong ., 2d S e ss . 4 (1966), a s  "a qualified application of 
the doctrine  of r e s  judicata ."

In a case  involving a s im ila r  r e s  judicata question, this 
C ourt a ffirm ed  a New York conviction fo r casting  contem pt 
on the A m erican  flag  by an equally divided Court in Radich 
v. New Y ork , 401 U .S . 531 (1971) (M r. Justice Douglas not 
partic ipa ting ). The D is tr ic t C ourt fo r the Southern D is tric t 
of New York denied fed era l habeas corpus re lie f , re ly in g  on 
§ 2244(c). United S tates ex re l. Radich v . C rim inal Court
o f New York, ___ F . Supp. ____(S .D .N .Y . No. 71-2738,
decided D ecem ber 3, 1971). The Second C ircu it re v e rse d  in
a 2-1 decision , ___ F . 2 d ____(2nd C i r . No. 71-2185, decided
A pril 26, 1972), cer tio ra ri pending sub nom . R o ss  v .
Radich  (O .T . 1971 No. 71-1510).

The d issen t of Judge M ulligan of the Second C ircu it is 
rep rin ted  a s  Appendix A to th is b r ie f .

The fa ilu re  of the Sixth C ircu it to even m ention § 2244(c) 
m uch le ss  apply it in th is  case  has been recen tly  c r itic iz e d . 
See note, 40 U . C in . L . R ev. 189 (1971). 18

In a situation analogous to th is  c a se , a f te r  gran ting  
c e r t io ra r i ,  b rie fing  and o ra l a rgum ent, th is C ourt d is -

18
This Note which is also critical of the Sixth Circuit in Biggers for not 

following Supreme Court case law is reproduced as Appendix B to this brief.



28

m issed  the w rit a s  im providently  g ran ted  in Duncan v . 
T en n essee , 405 U .S . 127 (1972) (3 Justices d issen ting).
It is c le a r  from  both the per cu riam  o rd e r and the d is s e n t­
ing opinion that th is C ourt fe lt th e re  was no violation of 
the constitu tional guaran tee  against double jeopardy . How­
e v e r , the ru le  of B iggers, a s  a ffirm ed  by the Sixth C ircu it, 
would allow  a fed era l d is tr ic t  co u rt to exam ine de novo the 
double jeopardy  issu e  ju s t a s  if th is C ourt had not given it 
the fu lles t considera tion  when the case  was in itia lly  before 
the C o u rt. Biggers never alleged any "m a te ria l and co n ­
tro llin g  fa c t” in the low er cou rt that was not in the rec o rd  
before  th is C ourt when the case  wa,s heard  in itia lly  in 1967.

T here  a re  lim its  to the fed e ra l c o u r ts ' b road  powers 
of habeas corpus ju risd ic tio n  over sta te  judgm ents. See, 
e .g .  C ollings, Habeas Corpus f o r  Convicts —  C onstitu­
tional R ight o r  L eg is la tive  Grace 1, 40 C alif. L . R ev. 335 
(1952); Poliak, P roposals to Curtail Federal Habeas Cor­
pus f o r  State P risoners: C ollateral A ttack on the
G reat W rit, 66 Yale L .J .  50, 63 (1956): ”[I]t is conven­
tionally  assum ed  that perpetuation  of fed e ra l d is tr ic t  cou rt 
habeas co rpus ju risd ic tio n  is not constitu tionally  req u ired , 
on the theory  that C ongress is  free  to give what item s of 
fed era l ju risd ic tio n  it chooses to co u rts  which, unlike the 
Suprem e C ourt, ex ist only by congressiona l su ffe ra g e ."
66 Yale L .J ., supra  a t 63; and note, R em ed ies  against 
the United S ta tes and its  O ffic ia ls, 70 H arv . L . R ev. 827, 
864-875 (1957).

Suppose C ongress took away habeas corpus ju risd ic tion  
over s ta te  p riso n e rs  from  a ll low er co u rts  and rep o sed  it 
so lely  in th is  C o u rt. This C ourt has a lread y  considered  
B iggers  and divided evenly on it 4 to 4 . Would Biggers be 
allowed to re litig a te  th is  sam e contention again  w henever 
new Ju stices  com e to the C ourt? Logic d ic ta tes  no t.

The D is tr ic t Judge m entioned the "fortu itous c irc u m ­
stance" of th is  C ourt being evenly divided, thus the



29

p r is o n e r 's  re lie f  being denied. Suppose in a federal 
habeas corpus case  (after all the s ta te  judges had found 
no federa l constitu tional e r ro r )  the United States D is tric t 
Judge finds e r r o r  and gran ts the w r i t . The appellate 
cou rt re v e rs e s  2 to 1. The p riso n e r will be re tu rn e d  to 
ja il , assum ing th is Court doesn 't g ran t fu rth e r rev iew , 
yet two federa l judges have decided the p r iso n e r  w rong­
fully in ca rce ra ted , while an equal num ber of federal judges 
have thought his conviction constitu tionally  sound. The 
p r iso n e r  by th is "unfortu itous" c ircum stance  m ust se rv e  
out his s e n te n c e .19

Section 2244(c) is a valid  ex erc ise  of C ongressional 
pow er. Nothing in the leg is la tiv e  h is to ry  of the statu te  
ind ica tes  that C ongress intended any exception fo r 4-4  
a ffirm an ces. The Senate R eport, supra , re fe rs  only to 
denials of c e r t io ra r i  as c a rry in g  no presum ption  that fe d ­
e ra l righ ts w ere actually  adjudicated . As sta ted  in a 
no te , D evelopm ents in the L a w — Habeas Corpus, 83 
H arv. L . Rev. 1038, 1152 (1970), re fe rr in g  to the la n ­
guage used  in §2244(c): "It is  c le a r  that 'actually  ad jud i­
ca ted ' questions of law include all d ispositions except 
denials of c e r t io r a r i . "

B. Case Law

The Sixth C ircu it c ited  th ree  cases to support its  d e ­
c is io n  that a 4-4  affirm ance by this Court does not r e p r e ­
sen t an adjudication. The c ase s  cited and quoted a re  
E ttin g v . United S ta tes Bank, 24 U .S . 57, 76 (1826);
Durant v . E ssex  C o ., 74 U .S . 107, 112 (1868); and 
A nderson v . Johnson, W arden, 390 U .S . 456 (1968).
iy

In the Radich federal habeas corpus case, the count now stands at 2-2. 
The District Judge and one dissenting Second Circuit Judge would have 
denied relief.



30

M r. Chief Justice M arshall w rote fo r the C ourt in 
E ttin g v . United States Bank, supra . It was n ecessa ry  
in his opinion only to say that the judges w ere divided and 
"Consequently, the p rinc ip les  of law  which have been 
argued , cannot be se ttled ; but the judgm ent is  affirm ed, 
the C ourt being divided in  opinion upon i t . " Etting, 
supra , 24 U .S . a t 78.

The Sixth C ircu it next quoted from  M r. Justice F ie ld 's  
opinion in Durant v . E sse x  C o ., 74 U .S . 107 (1868). 
Significantly, the Sixth C ircu it om itted  what is  sa id  th ree  
p a rag rap h s  a fte r the language quoted in th e ir  opinion, to wit:

"The sta tem en t which always accom panies the judg­
m ent in such c ase , that i t  is rendered  by a divided 
co u rt, is only intended to show that th e re  was a d ivision 
am ong the judges upon the questions of law  or fact in ­
volved, not tha t th e re  was any d isag reem en t as to the 
judgm ent to be en te red  upon such d iv ision . It se rv e s  
to explain the absence of any opinion in the cause , and 
p reven ts  the decision  from  becom ing an authority  for 
o ther cases of like  c h a r a c te r . But the judgm ent is  as 
conclusive and binding in every  resp ec t upon the pa rties  
as i f  rendered  upon the concurrence o f  a ll the judges  
upon every  question involved in the c a s e ." 74 U .S .
a t 112. (Em phasis added).

The th ird  case  re lie d  upon by the  Sixth C ircu it 
A nderson  v . Johnson, 390 U .S . 456 (1968) is not ap p li­
cab le . The p e r  cu riam  opinion m ere ly  sta ted  that the 
low er c o u r t 's  decision  would rem ain  in  effec t. This la n ­
guage is  explained by the fac t tha t none of the eight Justices 
voted fo r affirm ance — four voted fo r re v e rsa l and four 
voted to d ism iss  the w rit as im providently  g ran ted .



31

Not cited  by the m ajo rity  w ere  United S tates v. P in k , 
315 U .S . 203 , 216 (1942) and H ertz v. Woodman, 218 U .S . 
205, 213-214 (1910), w here in equally divided a ffirm ances, 
it was em phasized that the decisions w ere conclusive and 
binding upon the p a rtie s  involved, though not authority  for 
subsequent c a s e s . See a lso , Inman v . B a ltim ore  and O. 
R - R - ,  361 U .S . 138, 146 (1959) (dissenting opinion of 
D ouglas, J .) ; Washington Bridge Co. v . Stew art, 44 U .S . 
(3 How.) 413, 424 (1845); and United S ta tes v . W orrall,
2 U .S . (2 D a li.) 384 (1798).

A 4-4 affirm ance in a c rim in a l case h is to rica lly  and 
logically  m eans the sam e as it would in any o ther c a s e .
It m eans the party  taking the appeal, against whom th ere  
is  a p resum ption  of guilt, has failed  to c a r ry  his burden 
of convincing the review ing court that the judgm ent below 
should be overtu rned .

The considera tion  th is  Court gave in  1968 to the sta tion - 
house identification is a factual question. The b rie fs  and 
the tra n sc r ip t of o ra l argum ent show that all aspects of 
the identification  w ere fully considered . The c e r t io ra r i  
g ran t did not lim it the question to voice identification, 
p a rtic u la rly  in view of Rule 23 of th is Court which says 
tha t a sta tem en t of a question  p resen ted  is  deem ed to in ­
clude every  subsid ia ry  question fa irly  com prised  th e re in .

2 . The stationhouse identification o f  B iggers was held  
fa ir ly  and scrupulously and not in derogation o f  h is  con­
stitu tional r ig h ts.

M rs. Beam er was an in te lligen t, tra in ed  n u rs e . She 
had been shown many mug shots of su sp ec ts , suspects 
had been to h e r  hom e, and she had attended police l in e ­
ups. All th ese  confrontations had been negative.



32

Once again on August 17, she was asked to look at a 
su sp ec t. Seated only with an unidentified woman and 
Capt. M cDaniel, she watched Biggers walk past an open 
door. She identified  him by his physical appearance. 
N aturally , being conscientious, and rem em bering  well 
the w ords, "Shut up o r I 'll k ill y o u ," she confirm ed the 
identification  by requesting  the police officers to have 
Biggers speak that sen tence.

The evidence both at the tr ia l  and habeas corpus h e a r ­
ing is uncontradicted  tha t she gave a good desc rip tio n  of 
h e r a s s a ila n t.20 She was able to  c lea rly  see  h e r  a ttack e r, 
and the neon lights (R. 13) along the tra c k s , as well as 
the full moon (R. 34), illum inated the ra p is t ’s fe a tu re s , 
as did h e r house lights .21 C on trary  to what the D is tric t 
C ourt sa id , th e re  was no conflict betw een M rs. B eam er's 
t r ia l  testim ony  and habeas testim ony . (A. 34) The D is­
t r i c t  C o u rt's  s ta tem en t that " th e re  is a lso  conflict between 
the testim ony given by the police o fficers a t the tr ia l  and 
that given by them  at the O ctober hearing  as to w hether 
o r not identification of pe titioner was made before o r  a fte r 
he was asked to speak these  words " is  a lso  e rro n e o u s .
(A. 34) Only th ree  policem en te s tified  at the tr ia l  con­
cern in g  the iden tifica tio n — O fficers M cDaniel, Smith, and 
Bailey. McDaniel sa id  she identified him without any 
h esita tion  —  "That, and she also  by voice, y es , s i r . " 22

20 The District Court erred here (A. 33). Mrs. Beamer gave eight char­
acteristics (A. 123-125).

21 The District Court erred here (A. 33) when it said, "The entire episode 
occurred in very dim light and the rape itself occurred in moonlight. "
Mrs. Beamer looked into Biggers' face in her house (R. 33) enough to 
identify him. Neon lights were over the tracks also (R. 13, 34).

22 McDaniel's testimony is somewhat ambiguous. He was never asked at 
the 1965 trial whether she identified him first by appearance or by voice, 
but to the extent it can be gleaned from his testimony, she identified him 
first by appearance (R. 66, 73).



33

Sm ith and Bailey sa id  unequivocally she identified Biggers 
befo re  she heard  him speak . (Smith, R . 40; Bailey, R . 79). 
At the habeas corpus hearing , McDaniel on being asked 
th is question the f i r s t  tim e , said  M rs. Beam er identified 
Biggers before  he spoke. (A. 80). O fficer Bailey a lso  r e ­
peated his t r ia l  testim ony that M rs . Beam er identified Big- 
g e rs  p r io r  to his speaking. (A. 134) . M cDaniel and Bailey
w ere the only officers who te s tified  at the habeas hearing .

The showup in Stovall v . Denno , 388 U .S . 293 (1967) 
was m ore  suggestive than th is one. T here  th ree  p o lice ­
men and two p ro secu to rs  showed Stovall to the v ictim  in 
h e r hospital bed. C ontrary  to what som e have read  into 
the opinion, th e re  is  no indication that M rs. B ehrendt’s 
physical condition would preclude a la te r  identification .
She la te r  reco v ered  to testify  against Stovall, but h e r h o s ­
p ital bed identification was m ade while she was se rio u sly  
i l l ,  in m ental o r physical anguish, o r drugged, o r  all th re e . 
This is quite d ifferen t from  the identification made by M rs. 
B eam er, a woman who had over the months viewed many 
su spec ts  in p e rso n  singly , in lineups and in photographs 
calm ly and d ispassionately .

The showup here  was a lso  le ss  suggestive than the one in 
Coleman v . A labam a, 399 U .S . 1 (1970). T h ere , the v ictim

23 What gives this police testimony the ring of truth, and what has been 
overlooked, is that when this record was made in 1965 showing unequivocally 
that Biggers was identified before he spoke, there was no incentive for the 
police to shade the facts since it did not make any constitutional difference.
A year later Judge Jones wrote in his dissent in Wade v. United States:
"It follows from the opinion of the majority that it is improper for observers 
of a crime to see a person suspected or accused of the offense prior to trial.
I had no notion that this was prohibited. I do not think it has been previously 
held that putting a suspect or an accused in a lineup and treating him in the 
same manner as the others are treated is or may be a violation of a con­
stitutional right. " Wade v. United States, 358 F.2d 557, 560-561 (5th Cir. 
1966).



34

Reynolds, on two occasions told the police he was unable 
to provide much inform ation as to the descrip tion  of his 
a tta c k e rs . His descrip tion  was "young black m a le s , 
c lo se  to the sam e age and h e ig h t." The two tu rned  out 
to  be one 18 and 6 '2 "  and the o ther 28 and 5 '4 - l /2  . Con­
t r a s t  th is with M rs . B eam er's d esc rip tio n  which m atched 
Biggers p e rfec tly . In Coleman, Reynolds, unlike M rs. 
B eam er, d idn 't com m unicate his identification until a fte r 
the defendant spoke. M rs. B eam er, how ever, told all 
the o fficers  rig h t away that th is was the m an. The tim e 
lap se  between a ssau lt and identification in  Coleman  was 
two months eight days; in B iggers, s ix  months twenty - 
s ix  d a y s . Reynolds te s tified  that when the police asked 
him  to go to  the  city  ja il he "took [it] fo r g ran ted" that 
the police had caught h is a s sa ila n ts . Coleman, supra,
399 U .S . at 6. M rs. Beam er went only to view another 
su sp ec t, as she had done many tim es b e fo re .

The D is tr ic t Court m ade five additional e r ro r s  of fac t. 
They a re :

1.

" (T)here is  no indication that a tru ly  concerted  e ffo r t 
was m ade to produce suitable sub jec ts f o r  a line-up .
A sid e  fr o m  a phone call to the juven ile  home and a sc re e n ­
ing o f  M etro Ja il inm ates no o ther e ffo r ts  w ere  m a d e ."  
(O rder A . 41).

The re c o rd  shows tha t Captain McDaniel consulted with 
Judge T atum  of the Juvenile Court and his su p e r io r  at the 
ja i l .  (A. 69-75). It was not possib le  at such sh o rt notice 
to find som eone whose age and s ize  w ere com parable  to 
B iggers. (A. 72). The D is tr ic t Judge’s a sse r tio n  that 
" th e re  a re  sev e ra l o th e r p riso n  fac ilitie s  in the a re a  and 
th e re  is  no evidence tha t any effo rt w as m ade to  sc ree n



35

them  for su b jec ts"  (A. 41), overlooks the re a litie s  of 
police p ra c tic e . The city  police have no authority  to use 
people from  the State p riso n  fo r lin eu p s . This was in 
1965. Even in 1972 we doubt if local police departm ents 
a re  p e rm itted  to go to local p risons to get lineup sub jec t.

The D is tric t Court seem s also  to have fo rgotten  that 
at the habeas corpus hearing  the burden of proof was on 
B iggers. No proof was offered that one o r m ore unusually 
la rg e  (200 l b . ) 16 y e a r old boys may have been available 
if the police had made the e ffo rt. The testim ony was un- 
controverted  that the police did  make the e ffo rt and no 
ch ild ren  of the s ize  of Biggers w ere availab le .

2 .

"The evidence c learly  shows that the com plaining w it­
ness  did not ge t an opportunity to obtain a good view  o f 
the su spec t during the com m ission  o f  the c r im e . " (O rder 
A. 41).

This sta tem en t of the D is tr ic t Judge has no basis in 
the re c o rd . If by a "good view " the Court m eans a p ro ­
longed look in  good lighting, perhaps that s ta tem en t is 
va lid . M rs. Beam er said  she was able to see him "right 
in the doorw ay— it was enough light from  the bedroom  
shining through. Y es, I could see  who he w a s ."  (R. 33).

She was with him fifteen m inutes o r  m ore walking along 
the track s  under neon lights which hung over the t r a c k s .
(R . 13). Her testim ony that she could see  Biggers in 
enough light to know who he was is  uncontroverted .



36

3.

" The w itness in the instan t case was unable to g ive  
e ith e r  an independent photographic identification o f the 
suspec t o r  a good physica l descrip tion  o f  h e r  a ssa ila n t. " 
(O rder A. 41).

The D is tr ic t Court apparently  was under the m istaken  
im p ress io n  that M rs . ^earner was asked to and was unable 
to give "an independent photographic identification  of the 
su sp ec t. " She looked at num erous mug sho ts, none of 
which w ere of Biggers and to ld  the police that none of them  
w as h e r a ssa ila n t. Since Biggers had no p r io r  rec o rd  
(his 16th b irthday  was only four days before he raped  M rs. 
B eam er, R. 104), the police had no p ic tu res  of B iggers.

We resp ec tfu lly  d isag ree  with the D is tric t C ourt's  s ta te ­
m ent tha t M rs . B eam er was unable to  give a good physical 
d escrip tion  of her a ssa ilan t. See the eight c h a rac te ris tic s  
she gave the p o lic e . (A. 124-125). Captain McDaniel
com m ented on M rs. B eam er's d escrip tion  of h e r assa ilan t: 
"She gave at that tim e , on January the 22nd, if I can just
glance over th is , she might h av e-----. " (A. 87). The
C ourt in te rru p ted  him  and ne ither the State atto rney  nor 
B iggers' a tto rney  pursued  it, although it was obvious 
Captain McDaniel had brought to court and could testify  
from  the police docum ent showing the descrip tion  M rs . 
B eam er had given the night of the r a p e .

4.

" The hesitancy o f  the w itness in iden tify ing  the p e ti­
t io n e r ."  (O rder A. 41).

The only testim ony  about "hesitancy" on M rs . B eam er's 
p a r t cam e from  O fficer McDaniel at the t r ia l ,  who said



37

she made the identification "without any h e s ita tio n ."
(R. 66). A fa ir  read ing  of all the o ffice rs ' testim ony is 
that she identified him at once. Biggers was asked to 
speak m ere ly  for confirm ation .

One can im agine a defense a tto rn ey 's  argum ent of 
police incom petence if the police had exhibited Biggers to 
M rs. Beam er without giving him an opportunity fo r h e r 
to  hear his voice. It would have been the sam e as the 
argum ent that would have been made in  Stovall had the 
police not taken Stovall to the v ic tim ’s bedside had she not 
reco v ered .

B iggers' testim ony indicates M rs. Beamer may have 
hesita ted  although in B iggers' testim ony it was he who 
h esita ted . When he spoke, he said  she nodded h e r head 
to  identify h im . (R. 108). The rea so n  why B iggers’ t e s ­
tim ony is not n e ce ssa rily  inconsisten t with the S ta te 's  
w itnesses is  that M rs.-B eam er identified Biggers when he 
was paraded  p ast h e r . Then Biggers was brought to a 
face to face confrontation w here he was told to  speak.

5.

"M rs. B ea m er 's  knowledge that p e titio n er  was thought 
by po lice  to be h e r  assa ilan t. " (O rder A. 41).

Throughout the re c o rd  all the police as well as M rs . 
Beam er te stified  tha t she was to look at a " su s p e c t." 
T here  is  not one word  in the re c o rd  that would support 
a finding that the police thought Biggers to have been her 
a ssa ilan t. R em em ber she had prev iously  looked at mug 
sh o ts , had suspects brought to h e r  home, and attended 
num erous lin eu p s .

This conclusion of the D is tric t Court that the police had 
told M rs . Beam er they thought Biggers was h e r a ssa ilan t



38

is  dem onstrab ly  and com pletely without any support in the 
re c o rd , even by in ference .

In addition to these  five m isunderstandings of the reco rd  
and unsupported conclusions of fac t, we have previously  
m entioned the tr ia l  co u rt 's  finding that M rs . Beam er 
changed h e r s to ry  between the tr ia l  and the habeas corpus 
hearin g  and tha t the police changed th e ir  s to ry  to show 
that she identified  him  only when he spoke. T his is 
sim ply an in accu ra te  reading  of the tr ia l  re co rd , and we 
have dem onstrated  its  inaccuracy  by citing  the nam es of 
the w itnesses and the pages of th e ir  t r ia l  testim ony  which 
support the opposite conclusion.

T his is not a case  of the tr ia l  judge weighing the c r e d i­
b ility  of w itn e sse s . All the instances of factually  inac - 
cu ra te  conclusions m ade from  the re c o rd  have been made 
from  an uncontradicted  re c o rd . Conclusions of law 
p rem ised  on such a m isunderstanding  of the tr ia l  re c o rd  
should not be allowed to stand. If the p re m ises  a re  faulty, 
the  conclusion is  bound to be faulty .

T his c ase  will not fit w ithin the fram ew ork of P a lm er  
v. Peyton, 359 F .2 d  199 (4th C ir . 1966) w here the  id e n ti­
fica tion  was by voice alone. We have no q u a rre l with 
P a lm e r  v . Peyton. If such a doctrine did not ex is t it 
would be n e ce ssa ry  to c re a te  one. As th is Court recen tly
sa id  again in K irby  v . I llin o is , 406 U .S . ___ (1972), it
is possib le  fo r a confrontation to be so  suggestive as to 
v io late  due p ro c e ss . This is  not one of those c a se s .

D r. Pollack, the expert w itness, assum ed  that M rs. 
B eam er's  "p rim ary  mode of iden tification  was through 
voice . . . "  (A. 104). He m ade that assum ption  by taking 
p a rt of C aptain M cD aniel's testim ony out of context (See 
testim ony  of McDaniel at R.. 66, quoted by Pollack at



39

A . 104). His conclusions a re  subject to question because 
of the m istaken  underlying factual assum ptions .

This is  not a constitu tional case  involving voice id en ti­
fication  a lo n e . A woman of honest repu te  got a good look 
a t h e r  a tta c k e r . She sa t calm ly  in an office in the police 
station  with Captain M cDaniel and ano ther w om an. Two 
o ffice rs  brought the defendant in h e r  view . Without h e s i­
ta ting  she m ade a positive iden tification . She was even 
m o re  c e r ta in  when she heard  him speak . No one suggested 
to h e r "th is is  the m a n ."

The e r r o r  of the D is tr ic t C ourt below in m isread in g  the 
1965 t r ia l  re c o rd  and in ignoring the uncontradicted habeas 
corpus testim ony w as not of law but of fa c t. Since the 
p rem ises  of fact a re  con trad icted  by the re c o rd , the co n ­
clusions of law should be re -ex am in ed . The re c o rd  shows 
the identification was fa ir ly  conducted .

CONCLUSION

The judgm ent of the Sixth C ircu it should be re v e rse d  
and the petition for the fed era l w rit of habeas corpus d is ­
m issed  .

R espectfully  subm itted ,

BART C . DURHAM, III 
A ss is ta n t A tto rney  General 
211 Suprem e C ourt Building 
N ashville, T ennessee 37219 
Telephone: (615) 741-2091

O f Counsel 
DAVID M . PACK 

A tto rney  General



l a

APPENDIX A

UNITED STATES COURT OF APPEALS 
F ob the Second Cibcuit 

No. 584—September Term, 1971.
(Argued March 24,1972 Decided April 26,1972.)

Docket No. 71-2185

U nited S tates ex rel. Stephen R adich,

Petitioner-Appellant,
against

T he Criminal Coubt of the City of New Yobk; H on. 
David R oss, Administrative Judge of the Criminal 
Court of the City of New York; F rank S. H ogan, Dis­
trict Attorney, New York County; and George F. 
McGrath, New York City Commissioner of Correction,

Respondents-Appellees.

-t-

Before:
H ays, M ansfield and Mulligan,

Circuit Judges.

** *



2a

Appendix A

Mulligan, C ircuit Ju d g e  (dissenting):
Stephen Radich, the petitioner herein, is an art dealer 

convicted in the Criminal Court of the City of New York 
of casting contempt on the American flag in violation of 
what was then § 1425(16) (d) of the New York Penal Law 
by virtue of his display of “ new art” forms described in 
the majority opinion. From the beginning Radich has 
been represented by able counsel of the American Civil 
Liberties Union who questioned the constitutionality of 
the statute under which he was convicted. He was found 
guilty in a two-to-one decsion of the Criminal Court 
{People v. Radich, 53 Misc. 2d 717 (1968)) with opinions 
by both the majority and dissent. The Appellate Term of 
the Supreme Court, First Department affirmed unani­
mously without opinion. {People v. Radich, 57 Misc. 2d 
1082 (1968)). A divided New York Court of Appeals (5-2) 
affirmed the conviction with majority and dissenting opin­
ions. People  v. Radich, 26 N.Y.2d 114 (1970). The 
Supreme Court granted review on October 19, 1970 to con­
sider the same constitutional issues which are now pre-



3a

Appendix A

sented to the Federal District Court. (See R adich  v. N ew  
Y o rk , 39 U.S.L.W. 3161). On February 22, 1971 the issues 
were argued before the Supreme Court and on March 24, 
1971 the United States Supreme Court rendered its de­
cision :

“ P er Curiam.

“ The Judgment is affirmed by an equally divided Court.
“ Mr. J ustice Douglas took no p a rt in the considera­
tion or decision of this case.”

R adich  v. N ew  Y o rk , 401 U.S. 531. Although the Supreme 
Court said it affirmed the judgment of the New York Court 
of Appeals, the majority opinion here reaches the con­
clusion that the Court made no actual adjudication at all 
because a majority could not reach any decision on the 
merits and that petitioner, whose petition for rehearing 
was denied on May 7, 1971 (402 U.S. 989), is now free 
to again urge these very issues in a habeas corpus petition 
in the United States District Court for the Southern Dis­
trict of New York. I cannot subscribe to this view.

Whatever the law before 1966, it is now evident that 
we are called upon to construe Title 28 U.S.C. § 2244(c), 
the purpose of wdiich was “ to provide a qualified applica­
tion of the doctrine of res jud ica ta  . . .  to proceedings 
on applications for habeas corpxis by state prisoners.” 
H.R. Rep. No. 1892, 89th Cong., 2d Sess. 3, 8, 13 (1966).1

1 It is interesting to note that the only case in point, United 
States ex rel. Biggers v. Neil, 448 F.2d 91 (6th Cir. 1971), cert.
granted,------U.S. -- ---- , 40 U.S.L.W. 3410 (Feb. 2, 1972) does not
discuss or even cite in either the majority or dissenting opinions, the 
governing statute § 2244(c). The majority opinion is based upon 
pre-statutory case law evolving before the res judicata bar enacted 
by Congress in 1966. It is in accord with the majority here but in 
view of its failure to construe the statute, I cannot find it convincing 
and certainly not persuasive.



4a

Appendix A

The subsection which is set forth in full in footnote 3 of 
the majority opinion, in essence makes a prior judgment 
of the Supreme Court conclusive as to all issues of fact 
or law in a state prisoner’s federal habeas corpus pro­
ceeding, where these issues have been actually adjudicated 
by the Supreme Court.2

Our inquiry therefore is what did the Congress intend 
by the phrase “actually adjudicated.” The Senate Report 
which provides the legislative history of the subsection 
states: “ This subsection is intended to give a conclusive 
presumption only to actual adjudications of federal rights 
by the Supreme Court, and not to give such a presum p­
tion to mere deaiials o f w rits o f c e r t i o r a r i Sen. Rep. No. 
1797, 89th Cong., 2d Sess., in 1966 U.S. Code, Cong. & Ad. 
News 3663, 3664.3 (Emphasis added)

The majority opinion takes the position that an affirm­
ance of a state court judgment by an equally divided 
court has “ no more legal significance for habeas purposes 
than denial of certiorari, which has never precluded sub­
sequent collateral relief. Brow n  v. Allen, supra, at 456, 
458-59, 489-94 (1953).” Brow n  v. Allen, 344 U.S. 443 (1953) 
does not deal with or even mention affirmances by an 
equally divided bench but rather is concerned with mere

* There is no question of fact here but rather legal issues of the 
constitutionality of § 1425(16) (d) of the Penal Law of New York 
under which the defendant was convicted. All of these issues 
were as pointed out above before the Supreme Court.

* “It is clear that ‘actually adjudicated’ questions of law in­
clude all dispositions except denials of certiorari” Developments in 
the Law—Habeas Corpus, 83 Harv. L. Rev. 1038, 1152 (1970) 
(emphasis added and footnote omitted). See also 45 Texas L. Rev. 
592, 595 n. 27 (1967).



5a

Appendix A

denials of writs of certiorari.4 Moreover, Mr. Justice 
Frankfurter’s reasoning in finding that a mere denial of 
a writ of certiorari by the Supreme Court in a state 
prisoner case did not bar a subsequent habeas corpus ap­
plication is most illuminating. In his opinion for the court 
on this point he stated:

“ These petitions for certiorari are rarely drawn 
by lawyers; some are almost unintelligible and cer­
tainly do not present a clear statement of issues neces­
sary for our understanding, in view of the pressure 
of the Court’s work. The certified records we have 
in the run of certiorari cases to assist understanding 
are almost unknown in this field. Indeed, the number 
of cases in which most of the papers necessary to 
prove what happened in the State proceedings are not 
filed is striking. Whether there has been an adjudica­

4 It should be noted that § 2244(c) refers to a prior judgment of 
the Supreme Court “on an appeal or by a writ of certiorari”. The 
dismissal of a writ may nonetheless have res judicata effect if the 
circumstances reveal that the court has dismissed on the merits, see 
Duncan v. Carter, 299 F.2d 179 (9th Cir.), cert, denied, 370 U.S. 
952 (1962). In that case a defendant’s criminal conviction had been 
affirmed by the California Supreme Court. The United States Su­
preme Court initially granted certiorari, but after oral argument on 
the merits, it dismissed the writ with a brief statement: “the totality 
of circumstances disclosed fails to support the substantial due process 
issues tendered in the petitions for certiorari. . . . ” Baldonado V. 
California, 366 U.S. 417 (1961). The defendant then commenced 
a federal habeas corpus action, raising the same constitutional issues 
that she had placed before the Supreme Court. In affirming the 
district court’s refusal to grant the writ, a panel of the Ninth Cir­
cuit concluded that the Supreme Court had “actually adjudicated” 
these claims and hence it was bound to follow that Court’s deci­
sion. Although this case was decided prior to the enactment of 
§ 2244(c), were the same question to be presented today, habeas 
corpus relief would be barred under the present statute. Compare 
Miller v. Carter, 434 F.2d 824, 826 ( 9th Cir. 1970), cert, denied, 
402 U.S. 972 (1971).



6a

Appendix A

tion or simply a perfunctory denial of a claim below 
is rarely ascertainable. Seldom do we have enough 
on which to base a solid conclusion as to the adequacy 
of the State adjudication. Even if we are told some­
thing about a trial of the claims the applicant asserts, 
we almost never have a transcript of these proceedings 
to assist us in determining whether the trial was ade­
quate. Equally unsatisfactory as a means of evalu­
ating the State proceedings is the filing of opinions; 
in less than one-fourth of the cases is more than a per­
functory order of the State courts filed. We would 
have to have very different records and to alter our 
consideration of these cases radically if a denial could 
fairly be deemed to be an undisclosed decision on the 
merits. In a few cases the issues before the District 
Court had not even been raised here. In other cases, 
the emphasis put on the issues here differed consid­
erably from that put on them in the District Courts. 
Alice could understand, but not I, how under such cir­
cumstances a district judge could assume if he is so 
minded that we ‘decided’ the question now presented 
to him.” B ro w n  v. A llen , supra, 344 U.S. at 493-94 
(footnotes omitted).

None of the obfuscations and inadequacies surrounding 
the denial of the writ of certiorari which led Mr. Justice 
Frankfurter to deny them significance for habeas purposes 
are present here. Mr. Radich is not an illiterate inmate of 
a New York State prison—he hasn’t spent any time in 
custody since his 1968 conviction. He has always been 
represented by competent counsel who have clearly pre­
sented his constitutional arguments to the State courts and 
the United States Supreme Court. There was an ample 
record from the State courts with written opinions artic­



7a

ulating clearly the majority and dissenting positions. 
There has been nothing peremptory or perfunctory in the 
disposition by the Supreme Court which heard argument 
on the merits and which voted on the merits. Radich even 
petitioned for reargument and lost. He has had his day 
in the Supreme Court and more. He failed to persuade a 
majority of the justices that the statute was unconstitu­
tional and therefore lost.5

There is nothing startling in the proposition that an 
even vote constitutes an affirmance of the judgment ap­
pealed. This has long been held and never challenged. 
While a 4-4 affirmance does not become a binding prece­
dent, the law of the case has been fixed. Thus the Supreme 
Court held in D uran t v. E sse x  Co., 74 U.S. (7 Wall.) 107, 
113 (1868) “The judgment is as conclusive and binding 
upon the parties as if rendered upon the concurrence of 
all the judges upon every question involved in the case.” 
In U nited  S ta te s  v. P in k , 315 U.S. 203, 216 (1942) Mr. 
Justice Douglas stated that a 4-4 affirmance is “conclusive 
and binding upon the parties as respects that controversy.” 
In H e rtz  v. W oodm an, 218 U.S. 205 (1910) the Supreme 
Court said at pages 213-14:

“Under the precedents of this court, and as seems 
justified by reason as well as by authority, an affir­
mance by an equally divided court is as between the 
parties a conclusive determination and adjudica tion  
of the matter adjudged, but the principles of law in­
volved not having been agreed upon by a majority of 
the court sitting prevents the case from becoming an

Appendix A

5 Fay v. Noia, 372 U.S. 391, 424 (1963) relied upon by the ma­
jority requires that federal constitutional rights of personal liberty 
“shall not be denied without the fullest opportunity for plenary fed­
eral judicial review.” The record before us establishes in my view 
that the petitioner here assuredly had that opportunity.



8a

authority for the determination o f o ther cases, either 
in this or in inferior courts.”* (Emphasis added)

The majority’s argument that since there was equal 
division there was no decision on the merits and therefore 
no adjudication under the statute is not only without 
authority but is of course p etitio  principii. The fact that 
no opinion is written is obviously unimportant. If the 
court had simply stated that the judgment is affirmed 5 to 
3 that would constitute an adjudication by the Supreme 
Court. Here the court said “The judgment is affirmed by 
an equally divided Court.” This is an adjudication. The 
court said so and I believe we should take it at its word.

Appendix A

• Mr. Justice Brennan’s statement in Ohio ex rel. Eaton v. Price, 
364 U.S. 263, 264 (1960) that "nothing is settled" by an equally 
divided court, as I read it, refers not to its lack of finality as to the 
parties before the court, but rather that it does not settle the law 
and has no precedential value. It is an adjudication ex necessitate 
sed ex lege.



9a

APPENDIX B

40 CINCINNATI LAW REVIEW 883-891 (1971)

H abeas Corpus—R es J udicata—A Previous Affirmative of Peti­
tioner s State Court Conviction by an Equally D ivided Supreme 
Court Does N ot Bar a R eview of the Conviction In a Federal 
H abeas Corpus Proceeding.—Biggers v. Neil, 448 F.2d 91 (6th Cir 
1971).

After a trial by jury in a Tennessee State court, Archie Biggers 
was convicted of rape and sentenced to a term of twenty years. Big­
gers conviction was based on evidence from a pretrial identification 
of his voice by the victim of the rape, some seven months after the 
crimes commission. The identification procedure was a showup,* 1 in 
which the police presented to the complaining witness a single suspect

47 See id. at 1024.

1 The showup procedure should be contrasted with the more familiar lineup 
in which the witness must identify the culpiit from a group of people, thus forc­
ing the witness to be more selective in his identification.



10a

for identification. During the showup at the station house, Biggers 
was compelled to repeat the words spoken by the rapist the night of 
the crime. At this confrontation between Biggers and the prosecutrix, 
he was neither assisted by counsel nor offered an opportunity for 
such assistance. The Supreme Court of Tennessee subsequently af­
firmed the conviction, holding that Biggers’ fifth amendment right 
against self-incrimination had not been violated.2 On certiorari to 
the United States Supreme Court,3 Biggers’ petition presented the 
question of whether the voice identification had violated his right 
of due process.4 The judgment of the State court was affirmed per 
curiam by an equally divided Court,5 6 with Mr. Justice Douglas 
dissenting in the only full, written opinion.

In a collateral attack on the judgment, Biggers obtained a writ 
of habeas corpus after a full hearing and review before the United 
States District Court for the Middle District of Tennessee. The 
district court found that the circumstances of the case were not so 
urgent as to warrant the use of the showup procedure. Since the police 
could have arranged the more reliable lineup type of procedure, the 
court concluded that the use of evidence from the showup, which 
tended to maximize the chances for misidentification, denied Biggers 
due process of law. On appeal to the Court of Appeals fdr the Sixth 
Circuit, held: Affirmed.® The district court decided a different 
question from the one presented to the Supreme Court and, in any 
case, the affirmance by an equally divided Court did not constitute 
a federal adjudication of Biggers’ constitutional claims: therefore 
the district court was not precluded from entertaining the petition 
for a writ of federal habeas corpus in respect to the pretrial identifi­
cation procedure.7

Historically, the power of the federal courts to issue writs of 
habeas corpus was possible only by specific grants of such jurisdiction 
by Congress.8 Since the Constitution simply provides that neither 
Congress nor the executive branch shall suspend the writ of habeas 
corpus except in the case of a rebellion or an invasion,9 it was left 
to the legislature to delineate the scope of the writ by statutory

Appendix B

2 Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967).
» Biggers v. Tennessee, 390 U.S. 404, reh. denied, 390 U.S. 1037 (1968).
4 Although the Supreme Court had held in United States v. Wade, 388 UA. 

218 (1967) and Gilbert v. California, 388 U.S. 263 (1967) that the accused must be 
given the opportunity for assistance by counsel during a lineup, the requirement 
was not given a retroactive effect, and thus Biggers' lack of counsel at the showup
was not in itself a denial of federal rights.

6 390 U.S. 404. For the Supreme Court’s policy in granting rehearings after 
an equally divided decision refer to R. Stern & E. Gressman, Supreme Court 
Practice 522-24 (4th ed. 1969).

• Biggers v. Neil, 448 FJ2d 91 (6th Cir. 1971).
U d.
• Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). But see Paschal, The 

Constitution and Habeas Corpus, 1970 Duke L.J. 605.
» U.S. Const, art. I, g 9, cl. 2.



11a
Appendix B

enactment. The Judiciary Act of 178910 supplied the federal courts 
with habeas jurisdiction to examine the legality of a prisoner’s 
detention who was then “in custody, under or by colour of the 
authority of the United States.” 11 The writ did not extend to per­
sons in custody by authority of a state.12 Not until the Habeas 
Corpus Act of 1867 13 did the federal courts’ habeas jurisdiction 
extend to state prisoners.

From 1867 to 1952 the habeas jurisdiction of the federal courts 
was carefully limited in respect to state prisoners. The availability 
of the writ to state prisoners was first based on a jurisdictional con­
cept.14 For example, where a prisoner’s conviction rested upon an 
unconstitutional statute, the judgment was void for lack of jurisdic­
tion and thus open to collateral attack.15 * The scope of the writ was 
restricted to the question of whether the state court had acted within 
its authority and not whether error of fact or law had been commit­
ted in the state proceedings.10 If the state court acted with proper 
jurisdiction, the due process requirement of the fourteenth amend­
ment was duly satisfied.17

Defining the law of federal habeas corpus as of 1915, the Supreme 
Court in Frank v. M angum  18 held that the writ was not available to 
a state prisoner, convicted by a court of competent jurisdiction, 
where his claim of denial of federal rights had been given an 
adequate review by the state judicial process.19 However, eight years 
later, in Moore v. Dempsey,20 * the Court indicated that the adequacy 
of the state processes did not necessarily prohibit a redetermination 
of a valid federal question which affects the finding of guilt. The 
decision marked a shifting in the Court's focus from deference to 
state court adjudications to the expansion of due process rights for 
the individual.31

10 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82.
n  Id. at 82.
11 Ex parte Dorr, 44 US. (3 How.) 103 (1845).
“ Act of Feb. 5, 1867, ch. 28, §1, 14 Slat. 385 (codified at 28 U.S.C. §2241 

(1964)). See also Mayers, The Habeas Corpus Act of 1867: The Supreme Court as 
Legal Historian, 33 U. Chi. L. R ev. 31 (1965).

io The Supreme Court further required the habeas petitioner to exhaust his state 
remedies before a federal court would consider his application. Ex parte Royall,
117 US. 241 (1896).

is See id. at 248.
i« See, e.g., In re Wood, 140 US. 278 (1891).
i 'In  re Converse, 137 US. 624 (1891).
i«237 US. 39 (1915).
12 Id.
Jo 261 US. 86 (1923).
*i For a discussion of the effect of Moore on the Frank decision and whether 

the cases can be reconciled, refer to Bator, Finality in Criminal Law and Federal 
Habeas Corpus for State Prisoners, 76 H arv. L. R ev. 441, 478-92 (1963); Reitz, 
Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 H arv. L. R ev. 
1315, 1328-30 (1961); Note, Developments in the Law—Federal Habeas Corpus, 83 
Harv. L. R ev. 1038, 1050-54 (1970).



12a

In 1953 any ambiguity in the law of federal habeas corpus with 
respect to state prisoners was resolved by the Supreme Court in 
Broum v. Allen .22 That case held that a state prisoner could have 
his federal constitutional claims fully litigated in a federal court 
although these same claims had been rejected on the merits by the 
state court.33 Subsequent decisions have asserted the principle that 

. .conventional notions of finality in criminal litigation cannot 
be permitted to defeat the manifest federal policy that federal con­
stitutional rights of personal liberty shall not be denied without the 
fullest opportunity for plenary federal judicial review.” 24

In Biggcrs,22 23 24 25 * 27 the court relied on the broad notion that res judicata 
does not apply to federal habeas corpus proceedings as a justification 
for its inquiry into the petitioner’s conviction despite the affirmance 
by the Supreme Court. Notably the court did not discuss, in this 
regard, the application of Title 28, Section 2244(c) of the United 
States Code.33 This section prot ides that in a federal habeas corpus 
proceeding a prior judgment by the Supreme Court on direct review 
is conclusive as to all issues of law or fact “actually adjudicated” 
by the Court.27 The only stated exception to this rule is where the 
habeas petitioner demonstrates the existence of a “material and con­
trolling fact” not in the record before the Supreme Court.28 The 
legislative intent of this section was “for a qualified application of 
the doctrine of res judicata.” 39 Contrary to the majority opinion of

22 344 U.S. 443 (1953).
23 One possible reason for this expansion of federal habeas corpus was that 

"with the growth of the country and the attendant increase in the Court's business, 
it could no longer perform its historic function of correcting constitutional error 
in criminal cases by review of judgments of state courts and had to summon the 
inferior federal judges to its aid.” Friendly, Is Innocence Irrelevant? Collateral 
Attacks on Criminal Judgments, 38 U. Cut. L. R ev. 142, 155 (1970).

24 Fay v. Noia, 372 U.S. 391, 424 (1963).
25 458 F.2d 91.
28 28 U.S.C. § 2244(c) (Supp. IV, 1969), amending 28 U.S.C. §2244 (1964):

In a habeas corpus proceeding brought in behalf of a person in custody 
pursuant to the judgment of a State Court, a prior judgment of the Supreme 
Court of the United States on an appeal or review by a writ of certiorari 
at the instance of the prisoner of the decision of such State Court, shall be 
conclusive as to all issues of fact or law . . . actually adjudicated by the 
Supreme Court therein, unless the applicant . . . shall plead and the court 
shall find the existence of a material and controlling fact which did not 
appear in the record of the proceeding in the Supreme Court and the court 
shall further find that the applicant for the writ of habeas corpus could 
hot have caused such fact to appear in such record by the exercise of reason­
able diligence.

27 Id.
23 Id.

. 2»S. R ep. No . 1797, 89th Cong., 2d Scss., 1966 U.S. Code Cong. & Ad. News 
3663, 3664. The Habeas Corpus Committee, which recommended these amend­
ments, was composed of federal judges who considered these recommendations 
to be consistent with recent Supreme Court rulings on habeas corpus. The judges 
felt they were bound to follow these decisions.

Appendix B



13a
Appendix B

the court of appeals, this provision of the Code emphasizes that res 
judicata has not been completely jettisoned in federal habeas juris­
diction.

The purpose and scope of section 2244(c) is consistent with previous 
Supreme Court rulings on habeas corpus.80 Where a constitutional 
claim has received plenary review in the state courts, a federal habeas 
corpus proceeding to relitigate this claim has been justified on the 
grounds that a state prisoner is entitled to a federal review of his 
constitutional rights.31 If the Supreme Court has given a state prisoner 
such a review on direct appeal, then the lower federal courts are 
justified in denying him a writ of habeas corpus to relitigate the 
same issue.

For res judicata to apply in any case, the issue in question must 
have been resolved in an earlier decision. In Biggers the court at­
tempted to distinguish the issues before the Supreme Court and the 
district court as an alternate basis for affirming the grant of habeas 
corpus. The court concluded that the Supreme Court's review was 
limited to the question in the application for certiorari; that is, 
whether the failure to provide counsel or to arrange a lineup resulted 
in an unfair identification of Biggers’ voice which violated his right of 
due process.33 The court of appeals insisted that they were determin­
ing the constitutionality of the showup procedure as used in this 
case, and were not reaching the narrower issue of the voice identifi­
cation as presented to the Supreme Court.

In its discretion, the Supreme Court does limit the review on 
certiorari to the questions in the application.33 As the dissenting 
judge noted in Biggers, however, the petitioner admitted to the 
court of appeals that the Supreme Court had reviewed the broad 
questions of due process in relation to the “totality of circumstances’’ 
concerning the identification procedure. The dissent also noted that 
the petitioner had presented such questions in his brief before the 
Supreme Court. The majority dismissed this fact, asserting that a 
brief cannot expand the scope of the Court’s consideration. However, SO * * * * * * * * * * * * * * *

SO See, e.g., Fay v. Noia, 372 U.S. 391 (1963); Sanders v. United States, 373 U.S. 1
(1963); Townsend v. Sain, 372 UJ5. 293 (1963).

81 Hart, Foreward: The Time Chart of the Justices, The Supreme Court, 1958
Term, 73 H arv. L. Rev. 84, 106-07 (1959).

88 The exact question upon which the Supreme Court granted certiorari was:
The petitioner, a 16 year-old Negro boy, was compelled by the police, while

alone in their custody at the police station, to speak the words spoken by a
rapist.during the offense almost eight months earlier for voice identification
by the prosecutrix.

Was the denial of petitioner’s right to personal dignity and integrity by the
police, and the failure to give him benefit of counsel, provide him with a
line-up, or with any other means to assure an objective, impartial identifica­
tion of his voice by the prosecutrix a violation of petitioner’s Fifth, Sixth
and Fourteenth Amendment rights?

458 FJ2d at 96.
88 Rev. R. Sup. Ct. 23(l)(c).



14a
Appendix B

Rule 40 (l)(d)(2) of the Supreme Court’s Revised Rules 34 states that 
the questions in petitioner's brief may be differently phrased and 
will be reviewed where these questions are not substantially different 
from those presented in the application. Assuming for the moment 
that the petition presented only the narrow issue of voice identifica­
tion, Rule 40(l)(d) (2) at least indicates that the Supreme Court’s 
review is not inflexibly riveted to the exact wording of a petition as 
the majority suggested.

Actually, the petition for certiorari specifically stated that Biggers 
was alone before the prosecutrix during the identification, that the 
police failed to provide a lineup, and that there was a seven month 
interval between the crime and the identification.35 The majority in 
Biggers held that the petition did not question the constitutionality 
of the showup procedure and was limited solely to the voice identifi­
cation issue. On the contrary, the facts presented in the petition 
clearly indicate that the entire identification procedure was put in 
issue. Curiously, these same facts were used by the district court as 
grounds for deciding that the showup procedure violated due process. 
The distinction drawn by the majority in Biggers between the issue 
decided by the district court and the issue they say was before the 
Supreme Court is more semantic than substantive. It demonstrates 
an attempt to artificially narrow the question presented on certiorari.

Although Mr. Justice Douglas treated the broad question of due 
process raised by the facts, the court in Biggers reasoned that his 
opinion only reflected the consideration of the four dissenters. Pursu­
ing this line of reasoning, the circuit court concluded that the four 
Justices who voted for affirmance without recording their opinions 
may have considered only whether the voice identification in itself 
was a denial of due process. Such a conclusion is simply not supported 
by the facts.

Assuming that the issues before the Supreme Court and the district 
court were the same;36 the crucial question, then, is whether the 
affirmance by an equally divided Court was a decision on the merits. 
Where the Supreme Court has adjudicated a federal question, raised 
in a direct appeal from a state court judgment, the res judicata 
doctrine of section 2244(c) will bar federal habeas relief. The majority 
in Biggers reasoned that the Supreme Court’s affirmance was purely * 16

34 Rev. R. Sup. Ct. 40(l)(d)(2):
The phrasing of the questions presented need not be identical with that set 
forth in the . . . petition for certiorari, but the brief may not raise additional 
Questions or change the substance of the questions already presented in those 
documents. (Emphasis added.)

16 See note 32 supra.
*• This assumption was also made—at least implicitly—by the court of appeals 

in respect to their discussion of the applicability of res judicata and the effect of 
the equally divided decision of the Supreme Court. The question of res judicata 
and the effect of an equally divided Court arc important only if the issues were 
the same before both courts.



15a

technical since the Court could only affirm where there was no major­
ity to reverse. The authorities which the court cited in support of this 
contention more forcefully hold, as argued by the dissenting judge, 
that an equally split decision does not settle any principle of law and 
hence the case lacks precedential value.37 As an indication of an 
evenly split decision’s lack of precedential value, the Court ordinarily 
does not write an opinion.

The usual practice of not expressing opinions upon equal division has 
the salutary force of preventing the identification of the Justices hold­
ing the differing views as to the issue, and this may well enable the next 
case presenting it to be approached with less commitment.38

In previous Supreme Court cases involving or interpreting the 
result of an equally divided vote of the Court,39 it was emphasized 
that the judgment of the evenly split Court, though not an authority 
for subsequent cases, was a conclusive and binding decision upon 
the parties involved. Furthermore, in two other cases80 explaining 
the effect of a decision by an equally divided Court, there is language 
which suggests that such a decision is definitely a disposition on the 
merits. In any case where a party appeals to the Supreme Court, he 
has the burden of convincing a majority of the Court. Consequently, 
if he fails to carry his burden, he loses on the merits. In Biggers’ 
appeal before the Supreme Court, he was given a complete review of 
his constitutional claim, and the Justices did vote on the merits of the 
case. While the Court had to affirm, since a majority vote is needed 
to reverse, it was nonetheless upon a full hearing of the merits. In this 
particular situation, the wisdom is questionable which would allow

Appendix B

37 Anderson v. Johnson, 390 U.S. 456 (1968); Durant v. Essex Co., 74 U.S. (7 Wall.) 
107, 113 (1868); Etting v. United States Bank, 24 US. (11 Wheat.) 59, 78 (1826). 
The dissent cited: United States v. Pink, 315 US. 203, 216 (1912); Hertz v. Wood­
man, 218 US. 205, 213-14 (1910); United States v. Worrall, 2 U.S. (2 Dali.) 384 
(1798).

Etting v. United States Bank and Durant v. Essex Co., cited by the majority as 
explaining the effects of an equally divided decision, are civil cases. Since the 
diggers case involved a state prisoner’s claimed denial of constitutional rights, 
there would be a strong policy consideration to strictly interpret the res judicata 
effect of an equally divided decision. However, the court of appeals did not 
articulate this consideration since they were able to interpret these civil cases as 
holding that an equally divided decision does not reach the merits.

In the one criminal case cited by the majority, Anderson v. Johnson, the per 
curiam opinion merely stated that the lower court’s decision would remain in 
effect. This language is explained by the fact that none of the eight Justices 
voted for affirmance—four voted for reversal and four voted to dismi? he writ 
as improvidently granted.

88 Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264 (1960).
89 See United States v. Pink, 315 US. 203, 216 (1942); Hertz v. Woodman, 218 

U.S. 205, 213-14 (1910); Durant v. Essex Co., 74 US. (7 Wall.) 107, 113 (1868).
*»See Inman v. Baltimore & O.R.R., 361 US. 138, 146 (1959) (dissenting opinion 

of Douglas, J.); Washington Bridge Co. v. Stewart, 44 (3 How.) 413, 424 (1845).



16a
Appendix B

a single district court judge to cast the deciding vote for reversal 
of a conviction which the Supreme Court had affirmed.

As for the applicability of section 2244(c) to an equally divided 
decision of the Court, the res judicata principle of this section pre­
cludes federal habeas relief where the issues had been “actually 
adjudicated” in a prior judgment of the Court. Congress intended 
that the section include those dispositions of federal claims which 
were more than mere denials of certiorari.41 If the statute’s scope 
includes something more than a denial of certiorari, perhaps an 
equally divided decision after a full hearing can reasonably be re­
garded as an actual adjudication, or at least operating as an ad­
judication upon the merits. An evenly split decision in this context 
certainly carries substantially more weight than a denial of certiorari.42

Because of the equally divided vote on appeal, the Biggers case 
presents a unique opportunity to probe the significance and applica­
bility of section 2244(c),43 which the court unfortunately failed to 
utilize. The typical federal habeas corpus proceeding occurs where 
the Supreme Court has not directly reviewed the state court judgment 
or where the review was denied, and hence section 2244(c) would not 
bar the habeas corpus proceeding. But where review is granted and 
there is an actual adjudication, section 2244(c) will clearly bar those 
issues adjudicated from being raised in a federal habeas corpus pro­
ceeding. Thus, the doctrine of res judicata embodied in this section 
will foreclose some collateral attacks by federal habeas corpus.44

The fact that the Biggers court was faced with a novel situation is 
underlined by its approach to the case. At one point in its reasoning, 
in justification of the district court’s grant of habeas corpus, the court 
implicitly assumed that the Supreme Court’s 4—4 vote to affirm was a 
decision on the merits.45 In a subsequent line of reasoning, the court

41 See note 29 supra.
42 A denial of certiorari only means that there were not at least four Justices 

who wanted to review the case. Brown v. Allen, 344 U.S. 443, 489-97 (1953); 
Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (opinion of Frank­
furter, J.).

42 In the only case construing section 2244(c), the court held that a dismissal of 
certiorari was not an ■‘adjudication" within the meaning of the statute, but 
rather the equivalent of a denial of certiorari. Miller v. Carter, 434 F id  824 (9th 
Cir. 1970).

44 Since the Supreme Court usually reviews only those facts presented in the 
state record, it would be advisable in light of section 2244(c) to avoid direct review 
by the Supreme Court where a factual issue had not been fully developed in the 
staterecord. The Supreme Court’s review in this situation would preclude this issue 
from being considered in a subsequent petition for habeas corpus. For this reason, 
it would be advantageous for the state prisoner to first seek a writ of habeas 
corpus in the federal courts, which have the power to grant an evidentiary hearing 
to develop the inadequate trial record.
• « The court in Biggers stated that the issues before the district court and the 

Supreme Court were different. Distinguishing the issues before the two courts is 
necessary only if the Supreme Court’s affirmance was a decision on the merits.



17a

Appendix B

drgued that the equally divided decision was not an adjudication on 
the merits. These alternate rationales, which attempt to cover all 
possible contingencies raised by the situation, at the very least 
weaken the decision as authority for a similar case. Furthermore, 
the case’s authoritative value is already undercut by the fact that the 
diggers court completely overlooked the res judicata limitation of 
section 2244(c) as applied to federal habeas relief for state prisoners. 
While section 2244(c) does not cut a broad swath into the habeas 
jurisdiction of federal courts, it at least expresses a legislative intent 
to draw some boundaries. Its purpose was to provide a qualified 
principle of finality in criminal litigation. By ignoring this section, the 
court in Biggers failed to recognize any such limits to the federal 
courts’ broad power of habeas jurisdiction over state judgments.

R obert J. H ollingsworth

and therefore had a conclusive effect on the issue decided. In other words, 
why distinguish the issues if the Supreme Court's affirmance meant nothing? 
Also, the discussion of the inapplicability of res judicata to federal habeas 
corpus is apparently directed at the Supreme Court’s affirmance of the deci­
sion. Unless the affirmance was an actual adjudication, there would be no 
point in discussing the res judicata effect of the decision.