Archie Nathaniel Biggers v. William S. Neil, Warden, Tennessee State Penitentiary, Nashville, Tennessee

EDWARDS, McCREE and Before BROOKS, Judges. Circuit EDWARDS, Judge. Circuit we are asked the State this case Tennessee to and reverse review corpus of a writ of habeas issuance sought by Biggers District Court for After a District of Tennessee. Middle full hearing of the full and after review proceedings in record courts of Tennessee wherein rape and sen- had convicted of been years Tennessee’s State tenced to Training School, the District Vocational Judge proce- found employed Nashville dures subject of exten- subsequently made testimony so es- at trial sive depri- represent a sentially as to unfair appellant’s vation viewing federal peti- constitu- mer testified that on thing’ tional to due He law. tioner the ‘first that made her retry appel- ordered might Tennessee either to think he her assailant was lant or release him. However, his voice. the October hearing, Mrs. Beamer testified The District found the facts petitioner positively she identified pertinent to issuance of writ as fol- prior having speak to him words lows: spoken by Mrs. Beamer’s attacker evening January “On the more than seven months dur- earlier Margaret Mrs. Beamer was attacked ing the crime—‘You tell her shut- to knife-point by at an intruder who up you I’ll kill both.’ also There broke her into home. Mrs. Beamer’s given testimony conflict between the thirteen-year screams aroused her old by police at the officers trial and daughter who rushed scene and given by hearing them at the October began also point, At scream. as to whether or not alleged the intruder is to have said to petitioner was made before he or after Beamer, shup up, Mrs. ‘You her tell speak was asked to these words. you or I’ll kill both.’ This Mrs. Bea- any rate, petitioner “At was identi- did, whereupon mer she was taken show-up being fied at this Mrs. spot from the house to a two blocks attacker, subsequent Beamer’s and away raped. episode and The entire petition- indictment and conviction of very light in occurred dim and the exclusively upon er was based almost rape moonlight. itself in occurred As this station house identification.1 result, give only a Mrs. Beamer could very general a description of as- her “1. reading There is considerable doubt on sailant, describing being him as fat the trial record as to not whether or flabby skin, bushy and smooth positive Mrs. Beamer a made in-court youthful petitioner

hair and a voice. at the time of the trial.” period a “Over seven month follоw- Judge the crime the showed Mrs. The District reviewed this police photographs Beamer legal various recently record on a reit standard point lice station to petitioner asked Mrs. Beamer to come to the connection with that case the was unable to titioner was ant. sons shown to her as ^[******] “At rape ‘show-ups.’ However, was called a Finally, her instant arrested as another process employed attend several ‘look a on identify August show-up. being show-up at being woman. suspect.’ detained of the the victim Court in her assail- Mrs. Bea- suspect ‘line-ups’ at this While per- plicable po- pe- in erated cused must cause of the holding U.S. 263 1178] to the accused in conducted, (1967), and “In be [87 United States (1967), this represented here: language prosecution, does the United States [87 S.Ct. be Gilbert lineup possibility not, given which is however, apply at 18 L.Ed.2d way counsel. which ‘critical of unfairness held that opportunity directly ap 18 L.Ed.2d lineup 388 U.S. stage’ 1149] That be- ac- mer identified petitioner’s case, lineups her for the transpired As at appeared assailant. to what occurred show-up, Denno, there is conflict some be- June 1967. Stovall given by testimony tween Mrs. [87 given by declaring Beamer at the and that trial But hearing evidentiary appli- her at thé held rule of Wade Gilbert to be only lineups court October after cable conducted given trial, testimony recog- decided, Bea- Mrs. cases those we thermore, ‘totality that, judged the other circum- none of nized circumstances,’ cas- which the discussed stances above conduct may justify show-up may ex- procedures ‘so be es indicate identification unnecessarily evi- suggestive case. The condu isted in the instant clearly complain- irreparable identifi dence ing shows that mistaken cive get opportunity did witness cation’ as a denial of suspect good view the Id., to obtain S. [87 U.S.] of law. crime.2 commission v. United Ct. See Simmons 1972]. States, eye-witness, “2. Mrs. Tlie 967, 970, (1968); cf. 19 L.Ed.2d 1247] identify daughter Beamer’s could see, Eye-Witness Biggers. Wall, Identification P. And the case of Follette, supra ex rel. Garcia v. Cases; B.& Criminal J. Frank (2d 1969)] F.2d Cir. Wigmore, Guilty; Frank, Not 3 J. .accompanying text cases. and 1940); id., (3d 786a. ed. 4 Evidence § show-up Also, confrontation the U. 1130.” Foster v. § al- near time of the not conducted the L. S. leged but, rather, crime, some seven Ed.2d 402 Finally months commission.3 after its Employing “show-up” term to refer the “3- ex rel. the case of See police bring ato situation a where sin- supra, La Vallee, F.2d [415 Williams v. gle suspect before a victim of crime (2d 1969), Cir. cert. denied 397 purposes, identification District L.Ed.2d 90 S.Ct. accompanying (1971)] Judge held: text and and cases. “On this basis the Court must con- case was in the instant witness clude that the circumstances here give independent unable to either present are not such as to warrant the photographic sus- identification of the show-up procedure and, consequently, good description physical pect a petitioner’s that its use at trial denied nature of the her The assailant.4 process him due of law. “4. of United States See case * * * * * * (4th Thompson, supra, F.2d 196 [417 truly that a is no indication [T]here 1969), denied, Cir. cert. (1970)] produce L.Ed.2d 692 effort was made to concerted accompanying and cases. text and subjects line-up. a Aside suitable show-up in this case— as conducted juvenile phone to home from a call great lapse of time between with the screening inmates a Metro Jail identification, and the crime There were made. no other efforts identifying hesitancy of witness in prison facilities are several other petitioner,5 circumstances evidence that and there no the area any them made to screen effоrt was Gilmore, supra “5. See United States subjects. no sees rea- The Court (7th 1908)] Cir. F.2d 679 (Footnotes why this accompanying not have done son could text.” quotation.) to maximize the fairness order Here, coupled process. confrontation identification the stationhouse knowledge death- there no evidence of with Mrs. Beamer’s petitioner thought by urgency police be in Stovall which would bed delay- precluded police assailant, maximize have her possibility —tended until misidentification identification may line-up petitioner. True, ar- have been could have been suitable ranged. months crime was seven convenient for more fully However, old, show-up. recovered in matters the victim was well, process no indica- where are constitutional due there against justice demand- is balanced tions the ends of convenience show-up than fairness rather ed an need extend basic immediate line-up. Fur- the latter suspect more a criminal much reliable outweigh always should transcript developed value ferent in the testi- appears mony Judge. In former. this case District We be- line-up, both which sides lieve the record does not allow find us to generally admit reliable than more the conclusions of fact of the Dis- arranged. show-up, Judge clearly could have been trict erroneous. this was tend- fact not done addition, we find error needlessly ed to decrease the fairness Judge’s understanding District process which principles process they of due lawof subjected. apply proceedings prior “Due law and basic fair- to decision of Wade Gilbert cases. Normally ness most demand that reliable this would mean affirmance possible judgment method opinion on the careful See, by Judge used in criminal case. Sim- written Miller3 in the court States, supra, mons v. United U. below. (1967)] S. 377 at 383-384 panel, however, What our divides 1214], L.Ed.2d The conduct appeal proceed- the effect of the direct show-up in this case created an ings preceded the instant federal suggestive atmosphere which was so corpus habeas case. af- These included as to enhance the of misidenti- chance appellant Biggers’ firmance of convic- fication constituted a viola- hence by Supreme tion Tennessee, the Court of process. due of grant a by of certiorari the United Supreme Court, “Clearly, States this identification and the did not subse- quent error, to a harmless affirmance of decision the amount since the the of Supreme petitioner by victim’s Court of of Tennessee virtually equally upon membership evidence divided vote of the supra We charging fected obtained in the charge, any such new trial time to identification and the after habeas which the chie Nathaniel tered 18 See, Chapman (1966). ^[******] “Accordingly, took too 19 L.Ed.2d 1267 the state has granting officers who were by corpus, voiding place.’ S.Ct. 409, retry Mrs. Beamer’s station-house conviction was reviewed the state trial [390 U.S. 824, v. Biggers him judgment will California, application 17 had testimony upon (1968)].” court, the conviction L.Ed.2d v. from present 404, Tennessee, reasonable the same a be ‘unaf- 386 founded. custody writ of Ar- of the when S.Ct. U.S. dis- en- beas trict testimony our in relation to pretrial process question ceedings As we understand gers’ petition ployed of gards due preme affirmance final Our There are three reasons which disagreement: believes that process brother corpus. federal Judge the 4-4 Court a final in relation to in the course of United which on, making by from finds issues view vote the United States Su- States culminated with a 4-4 involved in this pretrial upon entertaining, arising federal writ precluded adjudication appellant Biggers. Suprеme findings matter, measures expression appellant appellate critical out of appeal, of fact compel taking Court. of Big- Dis- pro- em- ha- all appellate court record and the Judge record First, District decided that, above as well as the somewhat dif- question a different than that 1. Judge v. United States 388 U.S. William E. Miller is now member (1967). Appeals S.Ct. 18 L.Ed.2d 1149 of the United States Court for the Sixth Circuit. ‍​​‌​​‌​​‌‌​​​​​​​‌‌‌‌‌​​​​​‌‌​‌​​‌‌‌​​​‌‌‌‌​​​​​‍2. Gilbert v. 388 U.S. (1967). S.Ct. 18 L.Ed.2d 1178 squarely represented by application States Su- United preme certiorari.4 on certiorari. question which certiorari Secondly, understand we Application granted as stated controlling the United decisions was: for Certiorari Court, Supreme believe we Negro year-old petitioner, a 16 “The judicata ap the doctrine of res does police, compelled by while boy, ply in usual sense in federal habeas custody at alone in their Fay Noia, corpus proceedings. by spoken speak station, words 822, 9 83 S.Ct. L.Ed.2d almost offense rapist States, (1963); Sanders v. eight for voice months earlier identifi- prosecutrix. cation Sain, (1963); Townsend petitioner’s denial “Was L.Ed.2d 770 integrity dignity personal Fay Noia the give police, the failure to said: counsel, provide him him benefit federal cоurts’ “The breadth line-up, or with with independent adjudication power impar- objective, means to assure very corpus from the na habeas stems voice tial identification writ, conforms ture of the petitioner’s prosecutrix a violation English put practice. the classic As Fifth, Amend- Sixth and Fourteenth Holmes in his dissent Mr. Justice added.) rights?” (Emphasis ment Mangum, opinion su in Frank v. quotation below clear from the As is pra, U.S.,] at 348 express- Judge opinion, he Miller’s petition facts ‘If the discloses 595]: ly voice did decide the effect jurisdiction to a amount loss of por- perhaps identification, except aas court, jurisdiction could in the trial totality circumstances” tion of “the by any above.’ decision restored be show-up: suggestive impermissibly of an ha of It is of the historical essence unnecessary finds “[T]he pro corpus to test beas that lies voice of whether the issue reach ceedings fundamentally that lawless so amounted here as used pursuant imprisonment is not to them process. of due a violation itself to Hence, merely but void. erroneous validity may such of be that judica principle res that the familiar normally left be should proceed inapplicable habeas ta is jury. identifi- voice Since the Burford, e.g., ings, 339 Darr see v. show-up place took cation 587, 595, 200, 94 U.S. 214 S.Ct. [70 is show-up itself and the Salinger ; Loisel, 265 v. L.Ed. 761] employed in this unconstitutional 521, 519, 68 224, 230 U.S. S.Ct. [44 reach there is no reason to Mangum, ; 237 Frank L.Ed. v. 989] concerning voice specific raised issue 582, 589, L. 59 309, [35 334 S.Ct. U.S. identification.” 969]; Corpus Church, Habeas Ed. 386, really (1884), obviously of but an instance members is four § While judg principle grant larger void of the certiora court felt may collaterally impeached. of a be opened ri door for consideration ments 7, (1942), entirely Restatement, Judgments process question, §§ it is

broad due Judicata, 11; 65 Harv.L. Note, Res four possible all some or v. 818, Cf. Windsor against did 850 reversal Rev. voted members who 274, L. McVeigh, 282-283 [23 93 solely issue U.S. so on the voice identification Supreme scope expand granted issue on the certiorari was Since discussing merely by identification, consideration briefs Court’s of voice questions. (quoted Supreme at broader Judge dissent) length could Brooks’

97 1889) also, (Mr. Field); traditional 914]. Ed. So Justice Frank v. Mangum, 309, habeas characterization writ 237 U.S. 334 S.Ct. [35 original (save 582, perhaps 590, corpus 969]; Salinger as an 59 L.Ed. v. Court) Loisel, 224, when issued civil rem- 265 U.S. 230 [44 edy 519, 521, 989]; Waley the enforcement 68 L.Ed. v. liberty, personal Johnston, than 964, rather 316 U.S. 101 [62 S.Ct. stage proceedings 1302]; state criminal 86 L.Ed. rel. States ex appeal emphasizes therefrom, as an Shaughnessy, 260, Accardi v. 347 U.S. independence 263, of the federal habeas 499, 501, n. 4 98 L.Ed. [74 proceedings gone 681]; from what before. States, has Heflin v. United 358 U. say 415, crimi- This not to that a state S. 420 L.Ed. [79 S.Ct. 3 judgment resting nal a constitu- (opinion 2d 407] of Mr. Justice Stew purposes. art) (dictum); tional error is void for all Sacks, Powell 303 v. finality (C.A. But conventional notions 1962). Indeed, F.2d 808 6th Cir. permit- litigation day criminal cannot be we remarked pol- ted principle judica ‘the familiar that res defeat manifest federal icy rights inapplicable ta is constitutional proceed in habeas federal personal ings.’ liberty Fay Noia, shall not be denied v. opportunity without 9 L.Ed.2d 837]. fullest Fay plenary judicial review.” federal Salinger suggested, “It has see Noia, supra 422-424, v. U.S. at Loisel, supra, 230-231 added.) (Emphasis S.Ct. at 840-841. S.Ct., 521-522, 68 L.Ed. (Footnotes omitted.) principle derives Sanders, Court dis- cor- fact that at common law habeas principle: cussed the same judgments pus appealable. were not go deeper. But its roots would seem to “At law, common the denial finality lit- Conventional notions judge court or application place igation lib- life or where corpus habeas judicata. was not res infringement erty stake King Suddis, Eng. 1 East rights alleged. If constitutional Rep. (K.B.1801); Burdett v. Ab- ‘government always ac- [is] [to] bot, 14 East Eng.Rep. judiciary for a man’s countable to the (K.B.1811); parte Partington, Ex Fay Noia, supra, imprisonment,’ 13 M. & Eng.Rep. W. page at 402 S.Ct. at (Ex. 1845); Church, Corpus Habeas habeas access to the courts on 829] (1884), 386; Ferris, Ferris § Ex- inap- impeded. must be thus The traordinary Legal (1926), Remedies § habeas, plicability judicata res of person 55. custody ‘A detained in very then, is inherent the role might proceed thus from court v. the writ.” Sanders function of court until liberty.’ he obtained his 7-8, States, supra, United 373 U.S. Hakes, Cox (H.L., 506, 15 A.C. 527 (Emphasis 83 S.Ct. at 1072-1073. 1890). That principle this was a of added.) (Footnotes omitted.) our of corpus law habeas as well as English the was assumed to be Thirdly, we do not believe case from days the earliest of federal logically historically or a 4-4 division of corpus jurisdiction. habeas Ex Cf. Supreme the United States Court can be parte Burford, 3 Cranch 448 L.Ed. represent any adjudica held to federal (Chief Marshall). 495] Justice Since appellant’s federal constitutional of then, it has become settled in an un- on claims the merits. broken line of parte decisions. Ex Kaine, 1, (Mr. 3 Blatchf. 5-6 equal appellate Justice ‍​​‌​​‌​​‌‌​​​​​​​‌‌‌‌‌​​​​​‌‌​‌​​‌‌‌​​​‌‌‌‌​​​​​‍An division of Chambers); Nelson in Kaine, In re principle 14 court does not settle of law ; How. 103 parte [14 L.Ed. repre Ex or issue of fact for that court. Cuddy, 62, (Cir.Ct.S.D.Cal. 40 F. judgment ap- 65 sents affirmance of 98 decisions, equally read

pealed there were insuffi- As we these from because of vote the United Su- divided States cient votes reversal. Tennessee, preme Biggers v. Court opinions Supreme be- we which Court 390 88 19 L.Ed.2d U.S. demonstrates both lieve to law be settled (1968), judg- only means that “the principles: Supreme ment Tennes- of Court of [the arguments very “In the elaborate remains Anderson v. in effect.” see] bar, at the sev- have been made which Johnson, supra, 88 S.Ct. have which have eral been cited cases is, course, There doubt 1194. of no attentively at- considered. No been corpus federal allows habeas them, tempt analyze be will made to subsequent federal review claims application or decide their federal violations after fi- constitutional judges us, are because case judgment. is nal court And it Consequently, respecting divided it. opinion Supreme clear from of the principles lawof Tennessee, Court of S.W.2d argued settled; be cannot but (1967), nor neither considered judgment affirmed, court is decided constitutional validi- the federal Etting opinion upon divided in it.” ty “show-up” which the District States, 11 Bank of Wheat. United Judge on habeas found invalid. 6 L.Ed. added.) (Emphasis judgment is The of the District Court appeal “In cases of writ or of error affirmed. court, plaintiff appellant or moving always party. in error Judge BROOKS, (dissenting). Circuit It is action which asks. affirmative is, question presented shall respectfully I As dissent. indicated judgment, decree, reversed? be majority opinion, appeal If is an judges divided, the reversal order of Tennessee from an State had, order be cannot can be granting petition- of the District Court judgment be- made. The court Biggers, er-appellee, Archie Nathaniel force, low, therefore, stands in Big- full corpus. writ habeas Petitioner practice indeed, such settled gers for the in state court was convicted judgment case to enter a appeal rape. Upon affirm- Su- crime ance; but this is the most con- preme conviction Court Tennessee the expressing venient mode State, fact affirmed. disposed finally the cause reh. (1967), Tenn. 411 S.W.2d conformity action with the appeal An March denied below, court that court can Supreme followed. proceed judgment. its granted, enforce Certiorari was legal would same (1967), effect if error, appeal, dis- or writ judg- Supreme affirmed the Co., missed.” Durant v. Wall. Essex Tennessee Court of ment 107, 112, 74 U.S. 19 L.Ed. 154 by equally divided Court. added.) (1868). (Emphasis Tennessee, 979, 19 U.S. (1967), the reh. “Four members of Court would L.Ed.2d 1267 den. 390 Four of reverse. members the Court 88 S.Ct. L.Ed.2d brought improvi- (1967). this then would dismiss the writ Petitioner dently granted. Consequently, corpus. The action for writ of habeas basing judgment granted writ, Court United States Court District of Appeals petitioner’s Circuit the Sixth its to set aside decision of upon mains in Anderson v. John- its conclusion conviction effect.” surrounding son, Warden, totality 390 U.S. 88 S.Ct. circumstances of (Empha- petitioner’s pretrial L.Ed.2d added.) significant possibility ir- presented sis of identification,1 and, reparably mistaken reconsideration, by Court collateral re- therefore, petitioner’s view, constitutional due of the identical issue process rights Supreme were violated when this Court. I view the crucial (the identification evidence) sole identification issue in essentially this case as li- one of by police tigious was testified finality in criminal matters. See at the state A Bator, Finality trial. number of other in Criminal Law and challenges raised, constitutional Corpus Federal Habeas for State Pris- however, since the oners, District Court con- (1963), Harv.L.Rev. 441 for a pretrial cluded that of policy discussion relevant considera- prejudiced petitioner’s constitutional tions. rights, it did not reach the merits The District Court’s conclusion on the other claims. For reasons hereafter finality matter of by up is summed its stated, judgment I would reverse holding that: and remand to District Court for petitioner’s conviction “The fact consideration of the other claims raised by technically affirmed reason petition corpus. for habeas Supreme Court’s States opinion con- division of is of no State of even Tennessee has raised two First, sequence appeal. issues on here since the merits of whether adjudicated. if properly the District not Even claim were entertained petition they adjudicated, corpus light Sanders had been habeas Supreme claims would United States shows those af- Court’s automatically petitioner’s from firmance barred have been conviction. Sec- ond, in a ha- whether consideration denied corpus proceeding.” fair trial as a beas result of use the by- allegedly identification evidence Court, ma- The District as well as product of an unconstitutional identifi- language jority opinion construe the procedure. cation The District Court Stаtes, 373 Sanders United decided petition- both issues in favor of (1962), Biggers, er and the State of Tennessee Fay Noia, 83 S.Ct. contends both conclusions are erroneous. principles (1962), L.Ed.2d 837 While the issues as formulated judicata inapplicable in habeas “res generally convey State Tennessee the proceedings” that a District to mean questions review, nature of the under jurisdiction Court has entertain they accurately legal do delineate the corpus and all claims raised a habeas controversy Thus, involved. there However, interpret petition. I do not really no doubt that the District Court language employed in Sanders power had the petition to entertain the finality Noia, supra, to mean there is no corpus, however, for habeas the essence Clearly a criminal in a criminal matter. dispute power is whether the having particular issue defendant collaterally petition- court to review litigated fully court and first in state er’s state conviction extended the is- court, simply then federal cannot turn sue infirmity of the constitutional around an adverse resolution of pretrial procedure. And liti- and start the issue gating whole question which divides this Court is again. point question effеct, any, what if did the United taken, and I do not difference well see equally Court’s divided judi- question, that res views on the petitioner’s affirmance of state convic- defendant will the criminal cata not bar upon subsequent tion have proceed- beginning corpus District a habeas preceded (1907), Petitioner's identification the the standards established and applied decisions United States 388 retroac- to be those cases 218, 293, 1926, Denno, tively, U.S. 87 S.Ct. 18 87 L.Ed.2d 1149 388 U.S. Stovall (1967), 1967, and Gilbert v. 388 L.Ed.2d 1199 S.Ct. 87 S.Ct. 18 L.Ed.2d 1178 procedure wholly in the United District Court was not reviewed Supreme ful or which raises new issues issues not Court. the ly litigated in federal the First, significance I fail to what see However, logic precedent courts. and Dis- can be fact attached to the that the collaterally dictate that a defendant deciding trict felt it was Court estopped relitigating merits the question different than that litigated plenarily an issue and resolved presented Supreme the Court. Just against on the him. merits Gaitan See special the Court took because District States, United 295 F.2d legality show-up interest in the of the (10th 1961), Cir. cert. denied 369 U.S. assessing “totality the circumstances” 857, 82 L.Ed.2d and 9 A. S.Ct. ig- Supreme mean does not Court the 213, discussing re L.R.3d confusion the nored consideration that fact or сon- sulting from the use of indiscriminate solely centrated on the identifica- voice judicata see, res nomenclature. Also applying “totality” test. tion in Moreover, the v. Fol States ex rel. Schnitzler appellate the record shows lette, (2nd 1969), 406 F.2d Cir. Supreme it all the Court cert. denied 395 U.S. procedure facets the identification holding basing a similar reviewing Thus, certiorari. the case on principle of on the stare decisis. importance I see that the no in the fact emphasize pre- District viously chose to Court indicated, As has been the difficult totality aspect considered of the question dividing this Court is whether procedure of the in deter- infirmity the issue of the constitutional mining constitutionality. its pretrial procedure absolutely Secondly, support I find fully litigated. is, has been That appellate Supreme record Court equally divided affirmance Biggers’ majority’s position that for the application Supreme peti United States Court of limited certiorari Biggers’ adjudica tioner conviction only to the constitution- Court’s review ality pretrial identi on the merits of the as, quite of the voice identification majority fication issue. The feels contrary, clearly record shows constitutiоnality identi entire spectrum of factors sur- that the entire procedure had not scruti fication been rounding the identification origi Supreme nized Court in presented process in a broad due Judge appeal 1) nal the District because pre- challenge As a conviction. deciding question felt a different liminary observation, em- it should be Supreme than that appeal peti- phasized that even on Judge is, Court concen District brief that tioner has admitted legality trated his attention Supreme due reviewed the broad Court show-up than on constitu rather pe- process question. five of In footnote 2) identification; tionality of the voice stated: titioner’s brief application for certiorari filed argu- [Supreme] heard “The by petitioner stresses considered briefs with ments constitutionality the voice Biggers’ spect Fifth to whether identification; posi 3) there is no rights had Fourteenth Amendment Douglas’ in Mr. indication Justice tive (1) abridged his identification dissenting opinion in v. Tennes under Clause violated Due Process see, 979, 19 L.Ed. totality test of circumstances (1968), more than four 2d 1267 Denno, adopted in Stovall v. Justices considered “broad L.Ed.2d disagree question”. I believe trial of (2) use (1967) support simply ma recоrd does not compelled Biggers’ was words which jority’s that the constitution solely conclusion purposes voice speak ality pretrial identification Fifth entire violated incorporated Granting Writ”, “Reasons Amendment tie question argued: latter had is Fourteenth. The in United been reserved the Court Rights Was Petitioner Denied His 388 U.S. 218 States v. the Due Under Process Clause 18 L.Ed.2d 1149] Fourteenth Amendment and the Fifth (1967).” and Sixth Amendments the United Biggers’ application for certiorari While States Constitution Circum- Under phrased emphasize the as to voice so stances Similar to Those in Conflict- question, Appeals of Ten- identification State Court Cases Granted present- Presently Pending nessee’s statement the issues Certiorari and Be- Opposition ed in its “Brief In to the Pe- This Court. fore definitely tition for Certiorari” Writ of starkly The facts in this case process indicates a broader factual due simple, they ques- but raise a critical Furthermore, review.2 companying the briefs ac- tion of impartiality the fairness and application writ for the practices. of certiorari and actual briefs filed They reveal that Archie granted unquestiona- the writ once denied his po- to a fair trial bly surrounding show that all factors practices lice him denied ele- procedure the identification were raised mentary pro- Fourteenth Amendment process for review in the broadest due tections. challenge possible. recognize I and re- gret quoting documents these against petitioner evidence lengthen substantially will this dissent- at trial was the made ing opinion, but feel that I it is neces- prosecutrix, Margaret Mrs. Biggers Bea- sary conclusively to demonstrate mer, that Archie was the man Supreme the pects Court had it all as- raped Biggers, who had her. a 16 procedure of the identification year Negro early old was arrested on hearing original appeal in this morning August 17, the charged 1965 and plenary there has been review of attempted rape with the issue, and that no new issues of 70). (Tr. another woman Later the regarding question fact or law day, police brought same Beamer, Mrs. by petitioner corpus raised raped in his habeas who had been night January 22, 1965, request.3 almost eight (Tr. 4-7, months earlier 85- appeal Supreme In the Court 88) 27-28, (Tr. suspect” to “look at a grounds granting certiorari were 109-110). to describe Unable presented through Biggers’ “Petition identify 13) (Tr. her assailant her and Brief for In Writ of Certiorari”. case had clues. remained without 7-8, pages identify Biggers that document at subti- under if Asked she 2. Question II the State of Tennessee’s of law the identification brief “Questions under the subtitle Pre- head- followed * * quarters sented” was “Whether or not the Sixth Amendment to the United Consti- relating tution quoting assistance counsel 3. An additional some reason present requires length they counsel to be documents is from these procedure, (1) readily quoting when the are not In available. investigation general inquiry materials, but I from these foot- omitted crime, (2) transcript pages, into unsolved when notes and references prior however, complete to commencement of criminal held record of all docu- proceedings”. [Emphasis original]. ments case in the filed And, “Sup- may of Tennessee’s Tran- State Volume found Opposition plemental scripts Copies Brief File of Records Briefs, 232-237, Supreme Petition for the of Certiorari” Writ Xos. specifically question States, addressed Term the United October “whether or not was denied could, Denno, first view she had United supra, ex rel. [Stovall] petitioner present was of him in cus- in alone is not this case. tody presence police and of five offi- (“The In subsection II of that subtitle 112). lawyer. (Tr. cers He had no in Facts That Petition- This Case Show police required speak then him to The er Was and Denied Due Process Law rapist spoken exact words of the the during the Protection Fifth and Sixth (Tr. 6, 7, offense Amendments Constitution of to the 93, 108, 112-113, 156), on the basis of argued: States”) it is identified which she suggestion negate To or inference rapist. These were circumstances proceeding, a from an identification surrounding the identification line-up regarded generally as essen- prosecutrix. provide comparison tial to a mode of by police authorities. See Criminal raise the is facts in case The Investigation Interrogation, Ger- conflicting present in Second sue ed., (1962); ber and 22.20 Schroeder § Fifth cases which this Court Circuit Investigation, Criminal ed. Jackson granted has certiorari to determine. (5th 1962) pp. ed. 41-42. fail- Denno, ex rel. Stovall v. United States Biggers provide ure to Archie (2nd 1966), Cir. cert. 355 granted F.2d protection line-up rape aof in a (June 34 U.S.L. Week 3429 case, considering eight youth, 20, 1966); States, Wade United period rape month since 1966), grant (5th Cir. cert. F.2d 557 circumstances is inexcusable. There (Oct. ed 35 Week U.S.L. was no lack line- reason for the of a 1966). Circuit, sitting en The Second up, every provide reason Fifth, one. banc, held that the defendant’s Biggers As Archie held Sixth and Fourteenth Amendment police custody charge, for an rights unrelated not violated he was when this is not a case of street identifica- hospital victim’s room taken to the immediately arrest, after nor without benefit of identification line-up physically even a case where it was counsel, though even ar impossible line-up. to hold a Nor was raignment postponed to al had been identify Biggers there need to Archie Fifth him to obtain counsel. The low quickly. raped Mrs. Beamer had been Circuit, States, su v. United Wade eight and the months earlier nec- adopted time pra, specifically view essary line-up certainly arrange a dissenting judges in United States would Denno, not have her supra. affected identifi- ex ex rel. Stovall Indeed, lapse, cation. the time testimony line-up well on the cluded police, known ground line-up should have been had violated line-up po- sufficient to rights mandate defendant’s constitutional seeking conscientiously lice impar- had him two witnesses seen because tial, dispassionate shortly custody identification. be line-up, and defendant’s coun fore the Again pages II at subsection 12-13 notified and was sel had not been present argued: it is Big line-up. Archie at the gers, Wade, denied elemental like Archie was also denied his against suggestion protections right to assistance of counsel at identification, clearly the test counsel time of his identify Indeed, cir stage” his voice. “critical in his case. Escobedo Biggers’ Illinois, cumstances impartiality were less conducive L.Ed.2d States v. than those in United iden were without clue arguable necessity supra, tity raped and the of the man who had Mrs. speed identify in identification and difficult Beamer. If she could a man arranging line-up certainly form at involved least the would prosecution. had If counsel like cases inasmuch as at those basis present have done time of the ac- he could sever- Beamer, things impartial test. cused Mrs. criminal al to insure proceedings requested line-up, or insofar as commenced could have He alternatively plain plan to as- is other matter concerned. The some sug- designed petitioner is truth that had been conditions to avoid sure charge gestion. separate present, could arrested a and a If counsel as general prosecutrix inquiry questioned dur- matter Mrs. Bea- have ing mer she was called to see identification whether placed рosition identify mak- she him. herself in the could ing positive It is identification. granted the briefs Once certiorari possible presence quite his that mere decidedly show that Court would served to counterbalance have every had before it for review each and police, that of the and the inherent aspect procedure so identification suggestiveness police station identi- “totality as to assess of circumstanc- custody. fication one in Had coun- point “totality” es”. Beside the pre- might present sel been encompassing factually test raises a all requiring vented process issue, Biggers’ Supreme due in petitioner speak the words of “Argu- under Court brief subtitle rapist, an inher- words which carried argu- process the broadest due ment” suggestion guilt. ent Or counsel 8-18, Therein, pages at ment is made. might have advised client argued: it is main silent. “The Petitioner’s Circumstances of of this tak- circumstances Pre-Trial and Its Use Identification separately combination, en es- and in Deny Evidence at Him Due Prec- Trial tablish violations of the due es Law as Guaranteed the Four- Amendment, of the clause Fourteenth teenth Amendment. through it, violations of the Fifth “The in decisions of this and Sixth Amendments. States v. S.Ct. [87 In the Statе of Tennessee’s in “Brief (1967) and 18 L.Ed.2d Gil 1149] Opposition to Petition for Writ bert v. 388 U.S. 263 argued page Certiorari” it is 8: holding (1967) 18 L.Ed.2d 1178] urges grant pre-trial Petitioner this Court to identification absence Amendment, certiorari in this con- because he case counsel violates the Sixth question require

tends identical reversal in this case would but Denno, raised here is two the decision Stovall v. (2) cases mentioned which this U.S. 293 previously granted barring Court has (1967), certiora- retroactive 1199] their Respondent respectfully Gilbert, Biggers ri. insists effect.6 Like Wade questions the same. was assistance of denied the analysis is his retained clear from counsel hold an of Unit- pre-trial Denno, proceeding ed ex identification su- rel. Stovall pra, supra, attorney’s re States, in his Wade United absence.7 The question not manded Wade to determine whether is those cases proc- subsequent whether it is a violation of identification should in-court identify product ess a victim to be excluded of the accused tainted procedure identification, line-up ex while Gilbert identification police headquarters, pre-trial testimony but it is cluded in-court whether of the per provide petitioner se. ‍​​‌​​‌​​‌‌​​​​​​​‌‌‌‌‌​​​​​‌‌​‌​​‌‌‌​​​‌‌‌‌​​​​​‍ As incumbent identification State testimony prose counsel to the accused at the convicted on the identifi- following pretrial cation com- cutrix’s identify proceedings (she attempt showup mencement of criminal did not against trial) petitioner was un him. The at bar is un- him at case where impartial and selective counsel, Biggers found need represented would thereby procedures, and to exclusion under be entitled Gilbert lineup counsel, even when the need identification.8 reliability of part held because to Hold the Police The Failure “A. stranger is se aof Lineup Process. Violates Due verely fallibili normal human limited therefore, left question, “The memory. A show- perception and ties of Deno, open in Sovall hand, results up, on the L.Ed.2d suggestion that sus maximization of pre-trial con (1967), whether suggestion party pect guilty ‘ frontation between which, than more factor is the “one suggestive unnecessarily so victim ‘was memory and anything else, devastates irreparable and mistaken conducive to intended recol plays best havoc with our [petitioner] de identification that * * ’9 Suggestion is in lections rec process This is a nied due ognized ground of law. large product se part restricted upon a convic of attack iden lectivity the witness offered indepеndent to counsel tion process. Instead tification Peyton, F.2d 199 claim. Palmer persons several forced to choose between (C.A. 1966).’ 4th The accused Cir. weights, profiles heights, different with lineup, Stovall was identified without voices, confronted Beamer was and Mrs. procedure acknowledged suggestive single suspected whose individual with suspects practice showing ness: ‘The by guilt police communicated singly persons purpose of to custody. presenting and in him alone identification, part line and not as of a reject accept or is to The witness free (388 up, widely has condemned’ judgment, police choose. but not to p. 1967]). Never therefore, showup good reason, With theless, process violated suggestive grossly most ‘the is labelled exigent solely Stovall circum because of procedure or ever now danger stances. The victim death, Eyewitness Wall, by police.’ used if and an identification was to be Cases 28. Identification Criminal hospital made at all con ‘an immediate also, Denno, 388 See Stovall (Ibid.). imperative’ frontation was 18 L.Ed2d 1199] 302 n. extraordinary (1967).10 “The need for imme- lineup diate identification without identifying petitioner, Beamer Mrs. “In present completely in Stovall is absent relied, particularly on her recollection of contrary, here. On the at the time had not heard in seven a voice she identification, was in months, selectivity is decreased but even custody charge on an unrelated and con- by is more when identification voice. tinuously available for identification. by appearance physical An identification Similarly, was, Mrs. Beamer and characteristics, may rest various continuously months, been for seven may or a combination of which be one particularly striking, identify possible suspects. available to shape such as the unimpaired, Her health was and no oth- mouth, complexion, of a nose or skin er factors made identifica- immediate weight. scars, height or and iden Voice ‘impera- lineup her without a merely upon tification rests the tone exigent compelling tive.’ Held without voice, an individu of a as well as timbre circumstances, Biggers’ showup identifi- peculiarities.11 speech few When al’s cation violated due under the spoken special speech words are reasoning Denno, supra. of Stovall v. peculiarities present, in this as provide “United States v. 388 U.S. 218 tone and timbre are left to (1967) Selectivity [87 S.Ct. 18 L.Ed.2d is at bar identification. 1149] minimum; probability Gilbert error 388 U.S. 263 est moreover, (1967) Biggers, spoke [87 is maximized. (R. softly during 17). procedures the identification to identification produce difficult the intruder believe proposing it and safe spoke way during guards. attorney assault play For prac rape. unreliability tically meaningful of voice identi role as insurer compared physical integrity pre-trial fications as identi fications, proceedings, practices showup with resultant increased such recognized necessity suggestion lineup, for a which result in undue must Peyton, the Fourth Circuit in Palmer v. be condemned counsel is reduced passive (1966): observer, 359 F.2d 201-202 role unable to “ prevent unreliability and at reduced to ‘Where the identification tempting expose it after the fact at alone, voice of some com- absence trial. If counsel is unable assert danger parison grave prej- involves reliability as destructive of suspect, udice to for as noted one unconstitutionally showup pointed commentator has out: suggestive, it is difficult to see how he ordinary one circumstances “[E]ven will be able to law assist enforcement as accept only must cautious ‘by presupposes preventing Wаde pretends reserve what a witness ’ * * prosecution’s infiltration of taint heard (388 p. evidence’ at U.S. questioned rigorously “This Court 1926]). S.Ct. [87 reliability testimony of all identification “B. The Circumstance of Wade, Identifica- supra, in United States v. tion and Its at Trial Use Violate quoted approval Justice Mr. Frank- Due Process. furter’s observation identifi- that: ‘The case, however, strangers goes beyond proverbially “This cation un- is far trustworthy. Stovall, supra. affirmatively The record hazards such testi- The mony by petitioner’s identification, are a shows established formidable that by state, number in records and the use it instances made of de- English guaranteed by and American trials.’ The nied him trial fair Case Sacco and Vanzetti Fourteenth cir- 30. If this Amendment. The applies Biggers characterization to an cumstances identifica- which denied Archie by lineup, comparison process separately examined, where and se- will be lectivity greatest but, suggestion course, prejudicial impact their minimal, greater applies with far trial is cumulative. showup to the force in case where police ‘to “First. Prior to the call only accept reject Mrs. Beamer could or suspect’ par- look at a Beamer wаs Mrs. police suspicion Biggers that Archie was ticularly susceptible sugges- open and to rapist, showup and where the identi- tive influence. had occurred The crime guilt, fication was the evidence sole seven months lasted at earlier had pp. see 101-102. infra minutes; inevitably the most holding sharpness “The in memory Stovall absent un had faded. of her show-up by Beamer, usual circumstances violates Mrs. her own admission at rights trial, the due of an is was terrified fear accused of violence soundly policy also adopted rooted in the (R. herself and children. When asked Wade, 14): United States U.S. (1967) [87 S.Ct. 181 L.Ed.2d 1149] “Q. you ‘Are able describe Gilbert U.S. seeing man other than a butcher 18 L.Ed.2d knife?’ ‘presence Those cases envision that replied: “She prejudice counsel itself can often avert ‘No, “A. other than I remember meaningful and assure a confrontation shiny.’ blade (388 at trial.’9 p. at 1926]). Suggestion prevented night. place is to be crime at Mrs. took attorney calling grabbed hallway the attention unlit of Beamer was through

and marched kitchen an unlit these words. Whether not a violation petitioner’s rights railroad tracks and a wooded then to Fifth Amendment gave only general (see trial, Argument II, infra) rap- area. At she use of the еxplanation precise unnecessarily ist’s characteristics which words was identify suggestive. petitioner. led her to As the sug- danger Court said two “Wall has the latter evaluated gestion grave ‘particularly is when suggestive techniques used this case. opportunity witness’ was for observation is, showup He states ‘As bad ’ ** * (388 insubstantial. ways there are a can number be p. * 1926]). * * made worse. method One point suspect out the witness even suggested “Second. indicating showup, before the his status petitioner they rapist was the when * * * suspect. practice If this arrived at Mrs. Beamer’s home and enough, suggestive not deemed then the go suspect.’ In- asked her to ‘look suspect, alone, when can shown be “suspect” herent word quired speak to act or in the manner suggestion sufficient perpetrator crime linking evidence supposed spoken, acted or holding po- crime to warrant him at the adopted, example, method Sac- station lice for her identification. Thus Eyewitness co-Vanzetti case.’ Identifi- expectation normal of witness cation in Criminal Cases 30. guilty person present will substantially unpre in- Archie “Fifth. police. Williams, protect creased himself unequipped Cf. pared and Guilt, Proof of unfair against made an identification titioner cers, implying whom allayed any have increased her fear of her tification. garded by them for Beamer first saw custody “Third. At police aas might hand, remained as a ‘suspect.’ as not be thought the number of officers five to the ‘suspect’, present during sheer number police officers, Archie importance ‘the identity reasons by the station man.’12 On the may Biggers contradicting witness unknown to house Mrs. well a man all of iden have offi may pe re U.S. and cult lice record.13 himself the identification. L.Ed.2d do, years suggestions (1948); (1967).14 This education, procedures combined for apparently old, [87 U.S. against 325] him Gallegas [68 His had a ninth S.Ct. to the witness. and ^[49] to S.Ct. (1962); immaturity, suggestive vulnerability intelligently unfamiliarity [Gallegos] v. Colora no 52 [82 Cf. Haley In re previous grade to S.Ct. make relative influence L.Ed. 224] He Gault, education, safeguard Ohio, to it 1209, 8 police police diffi 527] lack 332 po guilt suggesting fur was procedures “Fourth. did not his When Mrs. Beamer notify Biggers identify by physical appear- by the his increased failure ther ance, required family de speak Biggers’ identification him to spoken during words was availa spite mother attack —‘Shut the fact that his up you.’ eventually having her ble, or I’ll kill earlier his notified —and speech compelled August was her son to the 17th that jury charge. at trial. While There is little that could an held on unrelated guilt. suggestive nonretroactivity Amendment have been more the Sixth Gilbert, su holding Wade, supra Mrs. Beamer had not and indicated rapist particular solely speech on the pra, precludes mannerisms ba reversal consequences required spo- counsel, to be those words sis of lack ken, speech pecu- proceeding and if he held even had had identification of an spoken attorney present liarities he could must be have other sen- without right phrases containing they tences of each of an accused’s affect noted as prosecution where, Davis v. North Caro to a fair trial. Cf. Court has rec 737, 740, ognized, lina, presents partic 384 U.S. ‘a (1966). ularly L.Ed.2d Placed hazard that a victim’s understand by outrage may in an and seized vengeful unfamiliar situation able excite or liberty spiteful de the natural fear of whose one motives’ United States v. another, pends upon un p. an accused is 1926], likely completely either reconstruct exception, “Seventh. Without testifying capable to all be suggestive employed procedures could state have which would re influences safeguard the fairness of identifica- impartiality and flect on the witness’ tion and trial but did not do so. There young credibility. An accused as practical impediment lineup. to a inexperienced Biggers par Archie The witness need not have told been ticularly affected these disabilities. suspect. was a He did not have sugges if We can never know additional repeat precise language used may tive further tainted influences have the criminal. Parents and counsel were identification in but we do present. available could procedure employed know that the max The number officers at the identifica- potential suggestion imized without surely tion was excessive their testi- presence protect protective of counsel to money up prop at trial served cross-examine, the Texas, Pointer v. thin case. No in-court unnecessary was offered. It was 13 L.Ed.2d 923] prejudicial state to initiate reference pre-trial newspaper Biggers’ “Sixth. The accounts of arrest exploited jury permit and identification trial the State’s or to complete Biggers spoke tainted identifi to learn that reliance on the words of Although may Finally, within a the good cation. shе came to criminal. have been assailant, advocacy foot of the Mrs. Beamer’s prosecuting attor- daughter young identify Big ney jury to tell could that ‘violence * * * gers. attempt did Mrs. Beamer terror in- fixes these matters pre-trial 177) delibly person’s (R. in-court identification. in a mind’ but hardly speaks identification was offered ‘mak- dedication to presented emphatically the criminal trial a jury guilt as difference the between the ascertainment of true the facts sur- guilt rounding innocence. No other evidence of the of commission the crime’ although testimony Wade, was elicit p. v. States 388 prosecution police ed from four the (opinion of Mr. Jus- transpired White). officers to the as what tice appear jury identification made it to the began “The the unfairness which with testimony that Mrs. Beamer’s was cor police labelling petitioner ‘suspect’, roborated,16 see United v. through extended an identification re- p. (opin 388 U.S. at S.Ct. 1926] plete suggestion the he was Black). According ion of Mr. Justice rapist from which he could safe- not prosecuting attorney, the the excitement guard himself, and culminated trial at a accuracy proof of the crime was of of in which the tainted was subsеquent the identification. Professor every the basis sole of conviction. At show, however, Borchard’s studies “that police way turn the acted in as to such the emotional balance of victim or the impossible. make reliable identification eyewitness is so disturbed his extra Biggers denied fun- Archie has been the ordinary experience powers that his of guaranteed damental fairness him perception became distorted and his iden due the clause of the Fourteenth frequently is tification most untrust Innocent, Convicting worthy.” Amendment and his conviction should XIII the especially rape This is in true reversed.” response argument, the had time po- to this from to time visited the countered, department attempt in its State Tennessee lice in an to iden- tify suspects. opposition main in ‍​​‌​​‌​​‌‌​​​​​​​‌‌‌‌‌​​​​​‌‌​‌​​‌‌‌​​​‌‌‌‌​​​​​‍brief merits She called to was iden- appeal, arguing: tify possible petitioner if while separate was held on a and un- Although petitioner de- not was charge. related had He been advised prived privi- his Amendment Fifth juvenile at the court of his constitu- lege against incrimination nor self rights tional as had his mother. He deprived was he Sixth Amend- displayed po- was to Mrs. Beamer at right counsel, this ment Court headquarters speak liсe and asked to asked to the circumstances review po- certain words. She reviewed the identification wheth- determine suspects files and lice viewed suggestive they as er or not were so rape. the months since her iden- right deprive petitioner of his tification which she made of guaranteed by a fair trial as product suggestion but Fourteenth Amendment to the Consti- many was the result of months in- tution the United States. vestigation. Beamer identified Mrs. This in Court the case of Stovall petitioner in also. Court There Denno, supra, although held no indication that her identification in accused was denied his Sixth courtroom the result of rights pro- Amendment because suggestion nor is there indication spective application of Wade and Gil- her court- bert, the matter could be reviewed room was result of or influenced order to determine fair whether a by her identification trial. given trial was him. This review purpose determining In the Stovall whether case accused was or not the identification confrontation five offi- handcuffed to one of fair, authority along who, made cers with members of the brought Peyton, Office, of Palmer Attorney’s 359 F.2d 199 District (4th 1966). hospital Cir. This Court stated him to a room which that a proc- “сlaimed violation confined. victim of the assault was ess of law the conduct of a confron- He was identified the victim depends having totality tation hospital on the bed after her surrounding quired speak circumstances it”. It is “words and iden- voice necessary that review the This held that tification”. surrounding circumstances in- the identi- not such circumstances petitioner fication of case Stovall was dicate that significant bar. deprived to a fair trial of his Peyton guaranteed by Court in the case Palmer Amend- the Fourteenth reviewed case circumstances deter- facts in Stovall ment. mined the accused facts very therein was similar to deprived guaranteed of a fair trial as at bar. case by the Fourteenth Amendment al- the con- affirm should Court This though particular question had rape. petitioner viction never been raised below. is also to indi- nothing record is There significant that the Court in the Pal- de- has petitioner cate mer authority upon case cited no process. to due prived which it reviewed the circumstances decision equally divided Following the surrounding the identification. Biggers peti- Court, Supreme by the petitioner Biggers was arrested arguing: rehearing tioned night August 1967, 16, ruling in juvenile taken the Court’s Subsequent court and released by juvenile has been metropoli- court to the certiorari petitioner’s an- case consider, tan Nashville. granted Mrs. Beamer circum- those been raped prisoner, months earlier and

1QQ issue, in an identifica- this mimicry stances which result but were a violating Supreme procedure Proc- tion the Due Court review. Amend- Fourteenth ess Clause of the If, appellate indicates, as the record ment, 638 Foster No. complete by there was a review the Su- (3/25/68). Mise., 36 3374 U.S.L. Week preme proce- Court of the identification lineup is al- Foster which involves applying test, dure appropriate legal unconstitutionally- leged to have been question dividing the next this is Court not ac- conducted. As evenly what effect divided decision elementary protection aof corded the had on the merits I issue. be- lineup is the record barren —and logically, historically lieve le- justifying hold the failure to evidence gally evenly a decision di- reached an would, a in Foster one—reversal for- vided court is on ma- the merits. The determine, tiori, affect, final if not jority correctly equal an states that divi- petitioner’s resolution of constitution- appellate sion of an court settle does not intervening al circum- claim. An any principle Logic, course, of law. as “the fact that the same stance such compels this result since establish or a related issue has come before principle having precedent of law value pending” is a court in other still eases majority required. decision Both is ground grant rehear- common ing. Etting Bank, v. United States 24 U.S. Supreme Gressman, Stern (11 Wheat.) 59, (1826), 6 L.Ed. 419 389; Practice, see Pic- 3rd Ed. (7 Durant Company, v. Essex 74 U.S. Co., kett v. Union Terminal 313 U.S. Wall.) 107, (1868), 19 L.Ed. 154 hold. so 1115, 85 L.Ed. 1546] S.Ct. disagree However, majority’s I (1941) ; equal statement that an of an division (1941); L.Ed. 563] appellate court does not settle an issue 86 L.Ed. contrary, fact. expression To the (1942) plainly appropriate . It is and “finally disposed of” in Durant Essex just that the results these eases two Company, supra, I believe con- means a beyond conform. Unless it is doubt clusive decision on facts. addi- In principles announced in Foster tion, Woodman, in Hertz v. 218 U.S. upon petitioner’s claim, will not bear 213-214, L.Ed. petition granted. should (1909), it is stated: petition was denied. court, precedents “Under the of this record, appellate On the basis and, justified by as as seems reason impossible simply it seems assume by authority, well as an affirmance Supreme that the Court failed to assess equally is, an as divided court between every aspect each and of the identifica- parties, determination conclusive only and considered adjudication ad- matter ” conjectured voice identification issue * * * judged, majority opinion. I' Mr. view Pink, And, in United States v. Douglas’ dissenting Justice opinion in 86 L.Ed. 796 62 S.Ct. which issue is discussed an (1941), stated that while affirm- is significant as a indication of all in- judgment equally divid- ance of a given factual clusive review that issue. authoritative court ed short, I that the believe may conclu- binding precedent “conclusive sion ap- be drawn from the parties respects that contro- pellate record in the versy”. also, Ree- United States v. See surrounding pre- that all facts side, L.Ed. trial plenarily identification by Court, viewed proceed- and established rule is well While this ings Court, pursuant the District novelty cases, civil because request only corpus, only habeas problem, a are few criminal there could unexplored judgment by raise new di- equally an a arrived legal factual or respect matters explored the effect cases which fully litigated However, in his habeas issues not several vided court. is, however, corpus petition, having collater- presented with been courts relitigating ally estopped the mer-

problem concluded cases have criminal by equally issue since divided its of an that an affirmance plenarily litigated re- is, case, the mer- issue has been court civil like against Thus, him. on the merits solved and ends its the issues judgment re- I would reverse the Chahoon dispute See over those issues. mand case to the District Court Commonwealth, Va. v. statute; construing of the other constitutional (1871), and see consideration petition McClung, petitioner’s Hampton issues raised v. State rel. ex corpus. parte Ex of habeas (1904); writ Fla. 37 So. (1938); White, 131 178 So. 876 Fla. 309-310, State, v. 173 Miss. Dean interpreting (1935), 162 So. 155 common law. case besides federal criminal Carter, supra, re- which involving judg- search has uncovered rel. ex STATES America UNITED ‍​​‌​​‌​​‌‌​​​​​​​‌‌‌‌‌​​​​​‌‌​‌​​‌‌‌​​​‌‌‌‌​​​​​‍equally PENACHIO, divided ment arrived Richard Petitioner- Appellant, court, Worrall, 2 v. is United States (2 Dali.) 384, 1 L.Ed. 426 v. guilty in There the defendant was found Warden, George KROPP, State Prison A. Jackson, Michigan, at- Mich

the United States Circuit of Southern igan, Respondent-Appellee. tempting Com- a United States to bribe Justices Mr. missioner of Revenue. ex rel. UNITED STATES America agree Chase and Peters unable ANDRIACCI, Joseph Petitioner- question federal whether Appellant, jurisdiction courts common law cases, criminal and there George KROPP, Warden, State Prison A. early appeal date of criminal at that Michigan, Jackson, of Southern Mich Supreme Court, of which the Jus- igan, Respondent-Appellee. members, judgment tices were also ex rel. of America STATES UNITED equally di- was affirmed because MAGNAFICHI, Petitioner- Lee punishment im- court and vided Appellant, posed. Admittedly, the affirmance sulting from this divided court was Warden, KROPP, Prison George State A. affirmance, technical but nevertheless Jackson, Michigan, Mich of Southern judgment upon pris- was a final Respondent-Appellee. igan, imposed. on sentence and fine were See 1121; generally, rel. ex 24B C.J. C.J.S. of America STATES § UNITED DiFRONZO, Petitioner- precedents Criminal Law 1945. These Peter § Appellant, persuade me an affirmance equally divided in a court criminal following presented, Warden, Prison KROPP, review of the issues State George A. Jackson, Mich Michigan, is on the merits of issues of Southern even Respondent-Appellee. igan, though the affirmance must follow be- judges equally cause the Nos. 20913-20916. divided. And, appellate clearly record Appeals, shows, constitutionality the issue of the Circuit. Sixth Biggers’ pretrial has Aug. completely totality reviewed on the of facts Court. Accord- ingly, I would hold that while raising not barred from new issues or

Case Details

Case Name: Archie Nathaniel Biggers v. William S. Neil, Warden, Tennessee State Penitentiary, Nashville, Tennessee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 18, 1971

Citation: 448 F.2d 91

Docket Number: 20540

Court Abbreviation: 6th Cir.