Neil v. Biggers Brief for the Petitioner
Public Court Documents
January 1, 1971
Cite this item
-
Brief Collection, LDF Court Filings. Neil v. Biggers Brief for the Petitioner, 1971. 17ddb552-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/475493f6-29cd-407a-8cac-415a806012b1/neil-v-biggers-brief-for-the-petitioner. Accessed November 23, 2025.
Copied!
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.