*1 1014 Correctional LaVallee, Rose Delle denied. Certiorari Cir. A. 2d
Superintendent. C. Justice Mr. whom Marshall, Justice Mr. dissenting. join, Douglas Brennan Justice Mr. this case, this in opinion curiam per earlier anBy Appeals of Court the of judgment the reversed Court granting judgment Court a affirmed had See corpus. habeas a writ for petition Delle Rose’s the S. 690 Rose, 410 U. Delle LaVallee erred below courts the Court, majority of a view “ade- an not madе had courts the state holding that in of 28 meaning within determination quate” voluntary. was confession Rose’s Delle (d) thаt 2254 § been had determination state “adequate” an Since on imposing in wrong was Court made, pre- by a showing the burden State terms under Rather, of the evidence. ponderance on was the burden (d), 2254 presumption con- the District establish Delle Rose “to court’s the state that evidence vincing there- The Court at 695. S.,U. erroneous.” con- proceedings further “for case fore remanded a referring to opinion” presumably with this sistent — thе voluntari- redetermination of the allocation corrected a ness issue Court, this the mandate receiving Upon the case did not remand Instead, a redetermination. District Court such instructions remanded it explanation, without the Court of petition. dismiss but opinion, only misconstrued this thereby statutory of his constitutional and deprived petitioner also convincing “to establish right attempt factual determination by the State court was еrroneous.” 28 U. S. C. § 2254(d).
At the outset, it seems clear from a reading of earlier per curiam decision that this Court never even addressed, let alone decided, the question of whether petitioner had satisfied his burden of рroving erroneous the state court finding of voluntariness. Nor would it have been proper to have done so. Neither the District Court nor the Court of Appeals had yet confronted the question, having mistakenly placed the burden of proof on the State. As we have said in similar circumstances, “it is not our function to deal with this issue in the first instance.” Swenson v. Stidham, 409 U. 224, S.
This case would not be so troublesome but for the fact
the record indicatеs that
the District Court might
well find the confession involuntary,
even were the
assigned
petitioner.
to
Indeed, in grant
ing the petition in the first place, the District Court
remarked: “Far from satisfying the State’s burden of
showing voluntariness by a preponderance,
the evidence
preponderates heavily the other way.” United States
ex rel. Dеlle Rose v. LaVallee,
understanding of the language; racked with physi- cal pain and psychological distress; weakenеd by hunger and lack of sleep; questioned for long hours by teams of vigorous and increasingly hostile of- ficers; nоt told of his rights to silence, counsel, etc., but given by tone and manner to understand that each questioner ‘has а right to, and expects, an six after cameras television before shoved answer’; assailed and abоut moved being or so hours subjected station; police questioners his the forced (including reenactment aof coercion torn back seat into hand his placement blood) late wife’s his with wet and pellets lеthal com as reason powerful perceived he damaging ultimately hostile pulsory, overpowered finally, then, innocence; claims visit aof fortunately, rare-—stunt if, the macabre — there explanatiоns pious morgue, quality highlight only serve . . that . after (f Id., 574—575 at manipulation.” ootn relentless omitted). otes *3 feel that not did Court of be that may
It again, But his burden had satisfied petitioner instance, the first for that question was dis- “sound whose Judge, to District for the but rather the administratiоn large part very be left must cretion Sain, Townsend corpus.” federal habeas finding factual any coursе, Of 293, 313 to review subject be would Fed. standard “clearly erroneous” instance, first (a). Proc. 52 Rule Civ. the court fact, trier of belongs finding factual petitioner’s story to hear opportunity had an appeals. not a сourt of demeanor,
observe considering By preventing by convincing prove petitioner could whether state court now with this Appeals, erroneous, the Court of cor- the presumption in effect turned acquiescence, presumption. (d) into an irrebuttable in 2254 rectness plainly petitioner’s such a result foreclosed relief opportunity seek guaranteed constitutionally on federal habeas corpus uрon proving that his deten- tion violates his fundamental rights. See Townsend v. Sain, supra, at 312. I would grant writ of certiorari, reverse the judgment of the Court of Appeals, and re- mand the case to the District Court with instructions to recоnsider, under the burden set forth in this Court's earlier per curiam opinion, whether petitioner's confession was vоluntary. I respectfully dissent. No. 72-6798. Gernand v. United States, ante, p. 844. Petition for rehearing denied.
No. 72-1440. Olenz v. Marovitz, U. S. Judge, al., et ante, p. 877. Motion dispense g printing petition for granted. Petition rehearin rehearing denied.
November 12, 1973
Pennsylvania
et al. United States
et al. Affirmed on appeal from D. M. D.
Pa.
Fuld et al. City
Elliott, Chairman,
Planning
Commission,
et аl. Appeal from Ct. App.
*4
N. Y. dismissed for want of substantial federal question.
Eakes South Dakota.
Sup. Ct. S. D.
Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Miller v. California,