*1 v. MATA SUMNER, WARDEN January 21, 1981 Argued December 1980 Decided No. 79-1601. *2 Court, Burger, J., opinion of the in which delivered the Rehnquist, J., JJ., joined. Blackmun, White, Powell, J., and and Stewart, C. post, J., concurring p. filed Brennan, result, 552. filed a statement JJ., joined, post, dissenting Stevens, opinion, in which Marshall p. 552. California, Brady,
Thomas A. Deputy Attorney General With him on the briefs petitioner. argued the cause H. Phili- Deukmejkm, Attorney General, Robert George were O’Brien, Edward P. Attorney General, bosian, Assistant Chief DeHart, Gloria F. Deraid E. Attorney General, and Assistant Attorneys Jacobs-May, Deputy Jamie General. Granberg post, p. ar- Hendon, by appointment Court, Ezra him on the brief was respondent. With the cause gued Quin Denver. Rehnquist Court. opinion delivered the
Justice held for the Ninth Circuit divided Court A was con- murder conviction state-court respondent’s pre- two bases: stitutionally holding Its has invalid. by state employed procedure photographic trial give rise impermissibly suggestive was “so police in-court misidenti- irreparable likelihood very substantial *3 of the the admission [respondent]”; of the fication of constitutional error “constituted identification in-court be- question (1979). The 611 F. 2d dimension.” analyzed Appeals properly whether us is the Court fore conviction, state-court murder challenge his respondent’s courts provided federal of the review the limited nature given 2254. S. C. U. I Superior the Court convicted in 1973, respondent was his one of murder of first-degree County, Cal., Kern At correctional institution. at a California fellow inmates all they had witnessed testified that trial, three witnesses respondent identified on the inmate and the attack part of offered an Respondent murder. as participating as respondent who testified three other witnesses alibi no did point occurred. At stabbing in bed at time by the State’s identification to his in-court object respondent eyewitnesses. three re- Appeal, to the California appeal direct
On
pretrial photo-
the first time that
claimed for
spondent
police
employed by the state
violated
graphic identification
him
the Fourteenth
process
guaranteed
due
of law
The Cali-
Amendment
the United States Constitution.
under the
Appeal analyzed
fornia Court of
his contention
Simmons United
test earlier enunciated
this Court
States,
explained that
Respondent did not seek direct review of the California Court of Appeal’s decision with the Supreme California Court. *4 He did, later however, pretrial raise the identification issue in state corpus habeas proceedings. The Superior California Court, the California Court of Appeal, and the California Supreme Court all denied relief.
On 9, December 1977, respondent filed petition a for a writ of habeas corpus pursuant to 28 S.U. C. § 2254 in the United States District for the Northern District of California again raised the identification issue. May On 23, District Court denied petition and re-
spondent appealed this order to the United States Court Appeals for the Ninth Circuit.
The Court of Circuit Appeals the Ninth reversed. court, employing the same used standard California state “the courts, photographic concluded identification was impermissibly suggestive very so as to give rise substan- irreparable tial likelihood 2d, misidentification.” 611 F. alia, at 759. conclusion was inter This on the court’s based, finding (1) surrounding the circumstances the witnesses’ observation of the crime were such that grave there was a misidentification; likelihood of (2) the witnesses had failed give sufficiently descriptions detailed assailant; pressure considerable from both prison officials and prison Id., factions had brought been to bear on the witnesses. at 758-759.
II The findings made the Court of for the Ninth considerably Circuit are with the findings odds made of Appeal. California Court Both courts made find- their ings after reviewing- state-court trial record and neither court has that this indicated record a completely is not ade- quate record upon which to base findings. such
If simply this were a run-of-the-mine case in an which appellate court reached opposite had an conclusion from a unitary judicial trial court in system, there would little be reason for invocation this discretionary jurisdic- Court’s tion to make a third of findings. set But unfortunately the smooth functioning of our system, federal which consists systems of 50 judicial state and one judicial system, national this is not such a run-of-the-mine Instead, case. case questions presents important regarding the role to played be by the courts in federal the exercise corpus habeas jurisdiction upon conferred them 28 U. S. §C. 2254. long
It has been those constitutional established, issues which be may properly raised under single that even a *5 court highest of the judgment the may overturn judge federal application with the deals as it insofar aof State in question. the facts or laws Constitution States United easily arrived not result imagined, this be might As to 28 predecessor Act of Corpus the Habeas under adumbrated doctrine, present But the § 2254. U. C.S. (1923), 261 U. Dempsey, S. Moore v. opinion Court’s Noia, 372 Fay opinion Court’s culminating in this and collateral such of 1867 allows is that the Act (1963), U. S. attack. its decision that in reaching asserts petitioner Circuit for the Ninth of the Court
majority specifi- authority on its limitations certain to observe failed Section 2254 §2254 in 28 S. C. forth U. cally set provides: court in a Federal instituted any proceeding
“(d) corpus person of habeas a for a application an writ a court, of a judgment to the State custody pursuant of a factual hearing on merits after a determination jurisdiction competent by a court of made State issue, for the writ applicant to which the proceeding in a evi- parties, or thereof were agent an officer the State or or other written finding, opinion, written denced presumed be indicia, shall adequate reliable and written itor shall establish applicant unless the correct, to be admit— shall respondent appear, otherwise shall not dispute were factual of the “(1) the merits that hearing; court resolved in State employed procedure “(2) the factfinding full fair afford adequate not court was State hearing; adequately de-
“(3) facts were the material hearing; veloped at the court State jurisdiction lacked court “(4) State *6 subject person applicant or of the matter over the proceeding; court State
“(5) applicant an and the indigent that the was State court, in of failed to deprivation right, constitutional his appoint represent to him in the court counsel State proceeding;
“(6) full, fair, did applicant the not receive that hearing in or adequate the court proceeding; State “(7) proc- applicant that the otherwise denied due was of ess law in court proceeding; the State “(8) part or unless of court the record State factual proceeding which the determination of such pertinent issue was to a determination of the suffi- made, ciency support of the evidence such factual determina- produced provided is as and the hereinafter, tion, Federal court on a of the part consideration such of record aas whole concludes that such factual determina- tion fairly supported by is not the record: “And in an evidentiary hearing proceeding Federal court, proof when due such of factual determina- made, tion been or has unless the existence one more respectively the circumstances forth in paragraphs set (1) numbered is (7), appli- shown inclusive, cant, otherwise admitted appears, respondent, is or unless pursuant provisions the court to the concludes paragraph numbered record in the State fairly court whole, considered as a does not proceeding, support such factual burden rest determination, shall upon applicant by convincing to establish evidence the factual determination the State court was erroneous.”
It is reading obvious from a literal of the above that applicable to the present although situation it been has contended that this should not be the case where appellate court, opposed state to a court, trial makes the findings. to read this pertinent We, however, factual refuse (d).1 Admittedly, limitation into the California it made the factual determinations at issue here and Appeal Nevertheless, a review of the trial court record. did so after “hearing” clearly meaning it held a within the respondent formally Both and the State were before Respondent given opportunity court. an to be heard plenary though claim received consideration even he his respondent failed to raise it before the trial court. After presented appellate court, his case the state that court *7 a opinion present concluded in written that “the facts adequately support respondent’s did not Since case” claim. to requested by respond- that court was determine the issue ent, may do not think he be to we now heard assert that its proceeding not a “hearing” within the meaning was § 2254 (d). (d) applies
Section 2254
in which
court
cases
a state
competent
jurisdiction
has made “a
after
determination
hearing
on
the merits
a factual
It
no
issue.”
makes
distinction
between
factual
determinations
a state
trial court
of a
appellate
and those
state
court. Nor
it
does
specify any procedural requirements
that must be satisfied
“hearing
there
be a
on the merits of a
issue,”
factual
other than
habeas applicant
that the
agent
the State or its
parties
be
to the state proceeding and that
the state-court
determination be evidenced
“a written finding, written
1
previously
question
Cuyler
This Court
reserved the
Sullivan,
v.
446
(1980).
341,
335,
U.
5
Appeals,
S.
n.
Courts of
without extensive
analysis,
differing
reached
have
conclusions as
findings
to whether
of fact
appellate
made
a state
court can be considered “determination
after
[s]
hearing
on the merits of a factual
issue” within
meaning
of 28
Drayton
Compare
Hayes,
U. S. C.
v.
117, 122,
589 F. 2d
§2254
(CA2 1979);
Finkbeiner,
n. 9
White v.
194,
(CA7
570 F. 2d
1978),
201
remand,
appeal
Payne
611 F. 2d
(1979);
after
186
Cardwell,
v.
436 F. 2d
(CA6 1971);
Nelson,
Hill v.
466
(CA9
577
F. 2d
1972),
1348
with
Howard,
(CA1 1973);
Souza v.
Undoubtedly, a court need elaborate or give reasons regards which it rejecting totally claims as frivolous or with- This, however, out merit. presented was not the situation here. To the the Court of contrary, Appeals reached a conclusion which was conflict with the conclusion reached by every other state and federal after judge reviewing by Congress tended as limitations jurisdiction. on the exercise of that As in Louisville Mottley, we held & Nashville B. Co. v. 211 U. S. (1908), repeatedly reaffirmed, and have duty since “it is the of this jurisdiction it to see to court], [C]ourt [district which is defined and limited statute, is not Having exceeded.” had the benefit briefing argument parties of the full from the issue, simply following we are Mottley well-established doctrine of the case *9 deciding (d) in issue. Reading exact same record. opinion conjunc- the court’s in it (d), tion with is clear that the court could not have implicitly paragraphs even on 1 through (d) relied 7 of § 2254 reaching in It impossible its decision. is to tell whether majority of the court relied on paragraph 8 its because gives opinion no indication that even considered. if Obviously, of Appeals in any this case or other court of appeals simply had inserted a boilerplate paragraph opinion it had its considered the state record as a whole and concluded that appellate the state court’s factual determinations were not fairly supported by the this record, objection to the judgment of the Court of Appeals could as not easily be made. as Just obviously, would be a frustration of the intent of Congress enacting § 2254 Reference be can made to Rule 52 of the Federal Rules of Civil Proce- requires
dure which a United States district court following a bench trial to “find the specially and separately facts state its conclusions of law thereon . . . .” It is a matter of common knowledge that on some occasions a district judge will sim- ply take findings of fact and prepared by conclusions law party judge whom the has indicated at the close trial prevail shall and without alteration adopt them as his own. However, requirement such as imposed is by Rule 52 un- doubtedly judge makes a more aware that it is his own imprimatur placed findings of fact and con- law, may clusions whoever prepare them. Congress When provided that a habeas court could dispense “presumption with the correctness” embodied therein unless it concluded factual determinations were not supported record, contemplated it at least some reasoned written references to § 2254 and the findings. state-court State judges well judges as federal allegiance swear to the Consti- tution of the States, United and there is no reason to think that because of their frequent of opinions differences as to how that document should be interpreted, all are not doing their discharge best to mortal their oath of office.
550
Federal habeas been a source has of friction between state obviously courts, Congress federal meant to alleviate some that friction when it enacted subsection in 1966 to the original as an amendment Federal Act Habeas of 1867. content Accordingly, given some must be provisions to the the subsection if the will of Congress be not frustrated. Since amendment, the 1966 this Court has had opportunities few provisions to address the various of subsection and never in (d), a context presented Cuyler similar the one g., here. v. See, e. Sullivan, 446 (1980); Rose, U. 335 Delle S. LaVallee v. A U. S. writ petitioner issued at behest of a § under 28 U. C 2254 S. is in effect overturning either the or legal factual conclusions by reached system the state-court judgment under the petitioner of which the convicted, stands likely and friction is a result. The line of our cases long previously accepted referred to friction as a necessary consequence of the Federal Habeas Act of 1867, 28 S.U. C. But 2254. it is clear in adopting 1966 amendment, Congress intended not only to minimize that inevitable friction but also to establish that the findings made by the system state-court “shall presumed be to be correct” one of unless seven specifically conditions forth in set (d) was found to exist the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court deter- “fairly mination is not supported by the record,” “the burden upon shall rest the applicant establish convincing evi- dence that the factual determination the State court was erroneous.” (Emphasis supplied.)3 minimizing In addition to the “friction” between the state and federal courts, the limited nature provided review 2254 also serves the society
interest that both and the individual criminal defendant have insuring “in that there will at point some certainty be that comes with litigation, an end to and that attention ultimately will be focused not on whether a conviction was free from error but rather on pris whether the oner can be place restored to a useful community.” Sanders v.
Although in much context, different we think arising Addington Texas, the recent language used in U. S. 418 (1979), no little bearing has on the issue here:
“The function of a standard of proof, concept embodied the Due Process and in Clause the realm is to factfinding, ‘instruct factfinder concerning *11 the degree society of confidence our thinks he should have in the correctness factual conclusions for a particular In Winship, type of adjudication.’ re 397 S. 358, U. 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error litigants between the indicate the importance relative attached to the ultimate Id., decision.” at 423.
When it enacted the 1966 amendment to 28 2254, U. S. C. § Congress specified absence of previously enumerated factors one through eight, the burden rest shall on the habeas petitioner, whose case time had run the entire gamut of a state judicial system, to “by establish convincing evidence that the factual determination of the State court was erroneous.” 28 (d). U. S. C. Thus, §2254 Congress meant to insure that a state finding not be over- turned merely on the basis of the usual “preponderance evidence” standard in such a situation. order to ensure Congress mandate of is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to any conclude that of the first seven present, factors were or the reasoning which led toit conclude that the state finding was “not fairly supported by the record.” Such a statement tying the generalities of 2254 particular facts of the case at hand will not, think, unduly we burden federal habeas courts even though it prevent will the use of the “boilerplate” language to which we States, United 373 U. S. 1, (1963) 24-25 (Harlan, J., dissenting). also See Bustamonte, Schneckloth v. U. 412 218, (Powell, (1973) S. J., concurring). previously Moreover, have adverted. a statement such will enabling appeals have the obvious courts of value of satisfy congressional this Court themselves that man- been complied reviewing date has with. No court the grant application corpus of an should be left to guess habeas to the habeas court’s reasons for relief granting notwith- standing provisions Cf. Greater Boston FCC, Corp. Television S. App. U. C. D. 2dF. Having this, said we are not to be understood as agreeing disagreeing majority with the Court the merits of the issue of impermissibly suggestive identi- procedures. fication Both the California courts and the fed- eral courts relied on the basic Simmons case their legal analysis. Applying test, the same majority of Appeals for the Ninth Circuit reached a different determi- nation than had all the other courts which considered the issue. Assuredly this is not the first nor the last time that such a *12 result will occur. doWe think, however, Congress was intent on some explanation sort written (d) § 2254 when factors such a result does occur. The judgment of the Appeals Court of for the Ninth is Circuit accordingly vacated, and the case is remanded for further proceedings consistent with opinion. this
It is so ordered. Justice Blackmun concurs the result. He would va- cate the judgment of the Court of Appeals and merely remand the case to that court for reconsideration in light of 28 U. S. C. §2254 (d).
Justice Brennan, with whom Justice Marshall and Jus- tice join, Stevens dissenting.
The Court today holds that an order of a federal habeas court requiring release or retrial of a state prisoner because of constitutional violations at bis trial must be vacated if the
court does not explain in why order 28 U. its S. C. does not bar re-examination of issues decided the state courts —even if the State not contest the order on the did ground of (d), and even plainly inap- if 2254 plicable under I decisions of this Court. dissent.
I Respondent was first-degree convicted of murder of another prisoner, largely on the strength testimony identification three fellow inmates at a penitentiary. California Two these witnesses had been photo arrays shown identification on three under occasions, circumstances that the United led States Court of for the Ninth Circuit to conclude it was “obvious that there irrepa- was a grave likelihood of rable misidentification.” 2d 611 F. Re- spondent object did not at trial to admission of identifica- this testimony. tion On appeal to the California Court of Appeal, respondent argued that the use of this evidence his United process rights violated due Simmons as defined in States, 390 U. 377 (1968). S. court considered rejected on the merits, claim it.
Respondent not seek Supreme did review in the California he Instead, pretrial Court. identification issue raised were corpus petitions state habeas where proceedings, his opinion. petition denied without he Finally, filed States corpus habeas under 28 2254 in the United U. S. C. again California, District Court for the Northern District of raising op- his return identification issue. position respondent’s petition petitioner for habeas corpus, re-examin- argued precluded that the District Court from *13 by pre- the a ing issue virtue of 2254 which accords (d), § sub- sumption findings, of correctness to state-court factual District to The ject exceptions certain not relevant here.1 to referring petition the on its without merits, Court denied 1 ante, at 544-545. See
554 for Appeals of the Court to appealed Respondent (d). 2254
§ (d) 2254 §his abandoned petitioner where the Ninth Circuit, finding that merits, reversed court That argument. pre- been violated rights had process respondent’s due. (d). to § It not refer did procedures. identification trial suggestion rehearing for a motion filed then Petitioner ar- including a one-sentence this time rehearing banc, en from reach- court the federal barred gument § that The Court issue. ing discussion. motions without denied these
II the Court concluding that in my Brethren join I cannot to discuss failure for its vacated must be Appeals’ decision today This Court by petitioner. raised timely not issue an petition a grant may court not habeas that federal holds not bound why it was stating on the record without a writ Ante, at judgment. to the state-court defer to Ap- of the Court judgment vacates It 551. therefore to raise failed though petitioner even case, in peals this The that court. his briefs before in (d) argument reasons or court need elaborate give “a admits that totally frivolous regards it which claims for rejecting ex- Ante, that, I add To that would at 548. merit.” without need not search circumstances, a court exceptional cept every contention argument and discuss legal universe party. losing not —made have been —but was might severe courts is of the federal the dockets burden on raise, re- the courts requiring enough already, without important enough not deemed explain an issue search, and their briefs. justify mention parties “ensure today’s holding will agree I cannot Moreover, ante, enforced,” (d)] of Congress [§ mandate likely as an invitation to be it is more seen 551; rather, boilerplate paragraph” courts to “inser [t] lower federal acknowledging their awareness opinions their
555 ante, See 549.2 at The requirement is as useless as is it disruptive.
Ill disposition Court’s of the instant case is all the more perplexing because (d) § 2254 plainly constitutes no bar the to Court of Appeals’ holding that the identification pro cedure employed by police respondent’s violated proc due rights. ess Section 2254 (d) requires a federal habeas court to defer to “a determination after hearing on the merits issue, of a made a State court . . . 28 .” U. C.S. factual § 2254 (d) (emphasis supplied). The factual issues to which (d) applies are “basic, primary, historical facts: 'in facts the sense of a of recital external events and the cred ibility of their narrators. . . .’” Cuyler v. Sullivan, 446 U. S. 342 335, Sain, Townsend v. (quoting 372 U. S. 309, n. 6 (1963)). Section 2254 does not bar a federal court from reviewing “a mixed determination law and fact requires application of legal principles to the his torical facts of this case.” 446 at 342; see Brewer v. S.,U. Williams, 430 S. 387, U. 403-404 2 The Court Taylor admits that Lombard, decision 606 F. 2d (CA2 371 1979), denied, cert. (1980), U. S. would be sustained under the Ante, today. rule announced at 547-548. The sole discussion of (d) by the Court of Appeals Taylor for the Second Circuit in conclusory its County statement: “The finding Court’s there nowas factual basis for perjury the claim fairly is record, not supported by the and therefore entitled to (d) (8).” deference. 28 U. C. S. 2d, 606 F. at 375. On the statement, basis we no more know whether Appeals Court of correctly for Second applied Circuit Taylor than we Appeals know whether the correctly Ninth Circuit applied Admittedly, it instant case. opinion Second Circuit manifested “full awarenesss” of the existence of ante, (d), see but it §2254 nevertheless guess to “left [us] granting reasons for relief notwithstanding provisions [its] of §2254 ante, (d).” See at 552. I be would content presume federal judges fully prominent are aware of so (d), statute as and to §2254 leave them energies free devote their opinions to writing concerning contested issues. did the Court determinations factual
What *15 not conduct an disregard? The court did Ninth Circuit the procedures, identification evidentiary hearing pretrial on the by upon relied state trial court record but relied the same the My of Appeal. of examination the California Court single disagree- of courts does not reveal a opinions the two or fact.” “basic, primary, ment over a historical by the issue The treatment the identification way of little in the California court was brief and contained relevant were that “the findings. findings formal factual Its adequate opportunity crime”; had an to view the witnesses by investigating “there is no of influence the offi- showing “descriptions are accurate.” and that the witnesses’ cers”; C-4 App. Appeals to Pet. for Cert. to C-5. The Court of explicitly agreed Ninth that the had the Circuit witnesses perpetrators the of the opportunity “an ... observe crime,” 2d, disagreed 611 F. but with the California legal opportunity court’s conclusion that the for observation constitutionally adequate, because of the “diversion the witnesses’ attention at the time the crime was commit- Id., ted.” at 759. Similarly, Appeals’ descrip- Court concerning tion the photographic lineup proce- facts dure in no significant differs detail from that offered id., Compare California court. at 756, App. with Pet. Cert. C-3 to C-4. The California court, however, concluded circumstances thus indicate the inherent fairness “[t]he id., procedure,” of the at C-5, Appeals while the Court of opposite reached the legal conclusion. The of Ap- like the peals, court, dispute California did accuracy identifications, only witnesses’ but degree their of de- 2d, Finally tail. 611 F. at 758. the Court of con- using array sidered whether a photo procedure rather than a lineup was necessary, a consideration not deemed relevant Id., the California court. at 757.
Plainly, disagreement between the courts over the is constitutional significance the facts of case, and not
over the facts themselves. Whether a opportunity witness’ to view a crime is “adequate” for constitutional purposes, whether a particular course of conduct police state raises a possibility of irreparable misidentification enough to serious violate standards, constitutional whether a witness’ descrip- tion sufficiently is dispel detailed to doubt proce- about dures imposed, and whether the necessity for a photographic procedure constitutionally significant are ex- amples of questions of law, at least mixed questions of fact questions law. The addressed the Court of Appeals “ for the Ninth Circuit required 'application of constitu- ” tional principles to the as found,’ facts Williams, Brewer v. supra, at 403 (quoting Allen, Brown U. S. (opinion of Frankfurter, J.)), and thus fall outside *16 limitations
Indeed,
this Court
held,
has
in a case similar on its facts
to this
that a
one,
dispute over allegedly suggestive pretrial
procedures
identification
is “not so much over the elemental
facts as over the
significance
constitutional
to be attached to
them.”
Biggers,
Neil v.
In Biggers, the District Court and the
Court of
the Sixth Circuit, applying the
“totality
circum-
stances” test of
States,
Simmons v. United
559 ently.” Sain, Townsend S.,U. at 318. A court federal need indeed, must not —defer the state inter- court’s not — Ibid.; pretation of federal law. see ante, 543-544.4 I view of this, cannot understand how the today Court can conclude that is obvious from a reading “[i]t literal [§ (d)] that 2254 (d) applicable § is to the present situation ....” Ante, at 545. To me, just it is obvious that is not applicable.
IV
The Court does not challenge the
correctness
of Appeals’ conclusion that
the pretrial
proce-
dure employed by the state police in this case
“so imper-
missibly suggestive
give
as to
rise to a very substantial
likeli-
hood of irreparable misidentification.”
U. S. 465