*1 Judge, SOBELOFF, Chief Before HAYNSWORTH, BOREMAN, BRYAN Judges, BELL, Circuit and J. SPENCER sitting en banc. Judge.

SOBELOFF, Chief a federal is more unwelcometo task No determining whether that of than infirmity in a exists a constitutional proceeding. particular criminal However, an issue federal law when Haynsworth, Judge, dissent- Circuit trial, may in a state later is raised ed. duty a re- undertake such our become present question in the view. the District Court erred in

is whether dismissing petition for a writ of prisoner filed without conducting hearing. Superior December On Mecklenburg County, North Court of Davis, Jr., Elmer Carolina, sentenced gas rape- chamber for death Foy Cooper. Bell Mrs. murder of of North Carolina affirm- 253 N.C. State ed. (1960). Certiorari was de- S.E.2d Supreme Court of the United nied States, *2 questioned by pro- (1961). present an undetermined number The L.Ed.2d 819 filing assign officers, (twenty-nine begun by ceedings of had been then the Cooper ease), ed to the petition about the murder for a Writ of thought possibly and about other 2241 in the United felonies under 28 U.S.C.A. § his; by to Eastern have been committed for the him since District Court States escape. primary purpose the After The was to- of North Carolina. hearing, down, possible, check out and break if denied without was per- pauperis appeal alibi an was Davis for the forma after September probable cause noon of 20. mitted and a certificate of was issued the District Court. Then on October 6 Davis was taken to police headquarters. What occurred gist petitioner’s com The the dispute. police there is in version illegally plaint is that an con obtained police that after Davis and a officer at his fession utilized the State was “prayed together,”2 signed paper he ******Confining point trial.1 at this ourselves confessing rape and murder of Mrs. undisputed the State to the Cooper, and that he then took the officers following record, appears: cemetery to the and re-enacted the crime. Sunday p. m., Between 2:00 and 3:00 any event, returning In headquar on to afternoon, September 1959, Foy Bell cemetery from the ters was Davis formal elderly woman, Cooper, her an left home ly charged with the and offense bound grave her mother’s two for a visit to Later, over. in a conversation with his away Cemetery, Elmwood blocks pastor, church Davis stated that he had Charlotte, North About 4:30 Carolina. properly been fed and well taken care of body dis that afternoon her lifeless during his undisputed confinement. It is group young boys play covered record, however, on the that Davis was ing cemetery. autopsy An dis day fed says two sandwiches twice a —he by strangula closed that death had been permitted sometimes one—and was ; also, tion the victim have been during bathe once time. raped. Davis, A few Elmer hours later objected trial, counsel Davis’ escaped At convict under sentence twenty-five years the confession evi- introduction into seventeen to for rob bery with accordance the State rape, and dence. assault with intent jury practice, trial excused the local arrested authorities Belmont, on the voluntariness Carolina, North took about twelve Rogers, See State v. following miles from Charlotte. The- confession. 390, 64 28 A.L.R. day, N.C. S.E.2d Davis was taken to Charlotte and According (1951). City Jail, customarily to the tran- placed 2d 1104 in used testimony, overnight script, only. which recites the detention A verbatim, form, but in narrative notation made on arrest sheet: making any guilt anyone admission “Do not allow denied to see re-enacting (sic) telephone.” him to to the officers or crime allow us Dur told, go “Davis, days, said he He the next sixteen them. Davis was Foy Cooper, argued Appellant Bell one Mrs. defendant 1. briefed a second death, your point. then it would be her caused duty It is that court errone guilty.” ously jury return a verdict declined to instruct guilty they between instruction re difference find the accused order to must given quested beyond is not and that constitution satisfied reasonable doubt significant, point ally and this will not be murder -was committed in the Grundler rape. appears, considered. v. North perpetration further how Carolina, 1960). (4th charge F.2d 798 Cir. ever, trial court did you jury, “If are satisfied from this evi revealing discussion of the For a dubious beyond a reasonable dence doubt that religious leverage to induce confes- use of September 20,. defendant Clergy- see, Kruse, The Role of the sions perpetrating rape, Confession, the crime of while Coerced man Wash- Winter, you, upon L.J., term has been defined to burn They you September sign paper did can and October so something get specify length go county jail and manner of questioning. get bath,” dis- and that when did not officers eat and a hot pute signed entry sheet that “did not think on the arrest [he] *3 being confessing any suspect Davis held He contended as a crime.” to asking Cooper case, they the and the docu- but denied that he is illiterate whole any questions he him read to him before about the murder ment was not sign September signed time betv/een 21 and October it. He did testified he him, addition, they 2. In paper, after no other which read to stated that some long person kept police him, “I determined had been for as told ever officer you days overnight jail you don’t as if sixteen in their fram the hell out of to something,” in which he was lacked and facilities tell me and that kitchen other long however, usually insisted, necessary He considered fear for his life. explanation not read to detentions. No was offered that what was represented him any confining to murder. him to relate there instead regular jail Later, claim, just street, it was located the to substantiate this across customarily pointed which Davis that his is an ar- out on behalf of used when signature person rested was affixed to the second is to more than be held confession, page page a few the two hours. page that this contained no mention of testimony, the trial the At the close of rape-murder. judge record show that “Let the ruled: rules that he while at this time As to the treatment received Court by City “I the defendant to told made at the Jail Davis testified: statement City something Sykes get L. to them I would like Lieutenant C. department, my police made eat, she could to and call sister so Charlotte something they voluntarily ad-

bring eat, statement is and such me evidence, way upstairs shown put off in a room mitted me myself nobody up The made no record.” come there where could written ** * findings During fact. course me. other and see weeks, more three two detectives of these ruling, affirming trial court’s In They me talk to talked me. North Carolina Court of day mur- twice a * * [about sometimes “According practice the to our said: question * [T]hey to me talked der]. every volun- a confession is whether day got I there from the time preliminary tary in a in- determined is signed paper.” also I Davis until judge. He hears quiry the trial before pounds on the that he lost 15 testified evidence, the demeanor observes jail. Also, provided him at he food question. witnesses, and resolves the police did inform not asserted accept appellate court must the de- rights. of his constitutional him supported com- if it termination rebuttal, police petent at 370. To asserted evidence.” S.E.2d officers support, had read to the court recited: been confession show such whole prisoner he had one told Davis testified the “The officers and that sign. any way; mistreated in him if he did not not been “fram” would Also, prisoners refute same food as other he had the witnesses offered State’s overnight jail]; that he to hold the did not [in directive arrest sheet the prisoner related or communicate with One to see ask incommunicado. request sister, except person his sister. This had asked to see day granted. witness) (the On the after the con- had tracked was that he message. prisoner Tross, conveyed tolil Dr. fession down her pastor recall, however, member of his own whether former did witness —a well prisoner been treated actually before race—that visited she ap- 116 S.E.2d 370. The in- admitted officers.” Four officers confessed. pellate court did undertake to make terrogating times between him several (4th Holly Smyth, F.2d 536 but findings basic independent hear- Cir.1960), been support there had where pointed that would court, ing conflict- State judge. findings by the trial re- had not been historical present case question in the determined, in accordance We solved. a suffi furnishes is whether the above Allen, error it was Brown v. with which the cient basis deny a for the District Court hearing whether could decide without allega- unadjudicated factual since obtained the confession constitutional raised a substantial tions process. This due within the bounds of State We stated: “[I]f issue. record, brings inquiry, appeal what us to the disclosed district federal circumstances satisfactory con- a fair and has been *4 adjudicate rely upon record State facts, the federal of the sideration presented with the constitutional claim rehearing a the same need not have on hearing.3 conducting a out totally is deficient facts. The record here by guideline down is laid The respect; what not told in this we are 443, Allen, U.S. 344 Court Brown v. or what factual evidence was considered (1953), 397, 463, 469 97 L.Ed. 73 S.Ct. findings Hence the District were made. writ where it that is said could not the State Court’s evaluate “ * * * hearing only a refused without them as a factual or treat conclusions record, satisfied, if is the court denying discretionary ground pe- given process fair has hearing.” 280 F.2d at 543. titioner a and the offered consideration to the issues Likewise, in North Caro- Grundler v. evidence, in a resulted satis- has lina, Cir.1960), (4th 798 con- 283 F.2d factory Frank- conclusion.” Justice Mr. Allen, sistent with Brown we said v. concurring furter, opinion, in his am- the District Court must conduct majority opin- plified portion this hearing a conflicts in the his- to resolve According exposition, ion. “plain torical facts there was a unless justices,4 majority curred showing full, there been a hearing held a if the court has State satisfactory adjudication fair and upon “specific rendered decision based issue the state court.” 283 F.2d at findings federal need of fact” the case, however, nowas 504, the facts. 344 U.S. at not rehear significant bearing “ issue of fact * * * But, 73 at 444. if the S.Ct. pointed the constitutional We this * * * claim. inadequate is record upholding plenary out in denial how court decided the show the State hearing. relevant historical the District appropriate procedures, shall use holdings the same To effect are our including necessary, if to de- Warden, 479, Clark v. 293 F.2d 481 503, issue.” 344 at cide the U.S. 73 S.Ct. (4th Cir.1961); Player Steiner, 292 v. 444. We take this to mean 1, (4th Bolling Cir.1961); F.2d 2 v. judge may rely upon the the federal Smyth, (4th Cir.1960). 281 F.2d 192 the historical facts record where are not Accord: United States ex rel. Sileo v. or, dispute, dispute, if there is a Martin, 586; (2d 269 F.2d 591 Cir. the State court has resolved where 1959), said, where the court “Faced with conflict. factual situation, the factual basis [where obscure], question of a trier’s decision is not new one The is speculate directly court need not point federal district A Circuit. Fcurth Black, Douglas, contend, Clark Bur- 4. Justices not nor could does 3. The State joined required portion it, ton in this Justice the District Court opinion. independent legal Frankfurter’s conclusion to make See, present. claim constitutional Pate, 433, 435, g„ v. 367 U.S. 81 Reck e. 1541, (1961). 6 L.Ed.2d 948 S.Ct. 908 rights.8 in the state as to the basis decision' stitutional While no mention

courts, police proceed brutality, to a is made of but should itself we have been told so that determination “the blood accused not only question may federal be resolved.” hallmark of an unconstitutional inquisition.” Alabama, Blackburn v. 361 appellate practice in con- The 199, 206, 274, 279, 80 U.S. S.Ct. 4 L.Ed. un- is to consider fession cases (1961). 2d 242 de- to be disputed facts and the facts favor termined is whether Davis’ will over- determining the voluntariness, the issue of borne to obtain the confession. See Reck where no Pate, 433, 440, v. 367 U.S. g. See, made e. have been the trier. (1961). probable L.Ed.2d 1641 And its Connecticut, Culombe v. 367 U.S. light truth can shed no issue. (1961). 604, 81 S.Ct. L.Ed. Rogers Richmond, See However, courts, appellate this is because (1961). 5 L.Ed.2d 760 courts, unlike the no facili- district conducting argues inquiries, that, ties for State as Davis was practice sentence, under not think that this must do detention illegal. point be adhered courts. the district made on behalf of the prisoner, however, Arizona, illegality 402- Thomas is not the *5 403, 885, (1958), per se, 78 S.Ct. 2 L.Ed.2d detention 863 at all events does not hold There the not concern otherwise. ourselves with this merely appel- Compare feature in a restated the usual state case. Mc practice States, v. True, 332, late Nabb United above in 318 outlined. U.S. 63 608, (1943). 5.Ct. 87 issue of fact had L.Ed. 819 been left Davis’ kept contention is a Unresolved state’s that had determination he been regular given jail, voluntariness, rations, deem the Court did normal food permitted customary relatives, it not an abuse of discretion access of hearing counsel, friends and District Court not to hold a the fact that he was adjudicate issue, under sentence conclusion have been this suffi apparently argument cient was reached basis for the because the issue State’s any particularly significant of fact a overcome was not adverse inference. He allegations makes one under presence here circumstances. factors, unprecedented unusual if not present ease, In the the unresolv dealing with prisoners, sentenced ed issues of fact raise a substantial chal explanation which tend to offset the offer lenge validity to the confession. ed. alleges summarize, To that he was incommunicado, held isolated from coun express any opinion doWe as to sel, family, friend or small room at the ultimate resolution be to made of the City days;5 petitioner’s claim; Jail for however, sixteen we think questioned alleged daily, enough he was sometimes twice he has to entitle him 6 7 day; inadequately fed; hearing. that he was to a District Court should that he was not informed of reach its conclusions after consider- undisputed length interrogation 5. The of detention ex 6. has been a basis Protracted Pennsylvania, ceeds that in Turner v. 338 in numerous of decision 62, 1352, See, g., Pennsylvania, U.S. 69 S.Ct. 93 L.Ed. 1810 e. Turner v. cases. nights (1949) (four days); supra, and five note 5. Alabama, 191, Fikes v. 352 U.S. 77 S.Ct. feeding Inadequate prisoner of a 281, nights (1957) (five 1 L.Ed.2d 246 Payne Arkansas, v. basis of decision days); Pate, and five or Reck v. 367 U.S. 844, 560, 78 S.Ct. L.Ed.2d 975 356 U.S. (1961) 81 S.Ct. 6 L.Ed.2d 948 supra, (1958). also, Pate, Reck See (three nights days); and four or Cu note Connecticut, lombe v. Colorado, g., Gallegos (1961) (four See, 6 L.Ed.2d e. nights days). (1962). and five 8 L.Ed.2d 384 supplementation offered at the of it. He does not contend well as the record. State District Court should previously hear the witnesses who testi- Reversed and remanded. fied trial, in the murder as this court Judge (dis- now HAYNSWORTH, directs. Circuit senting) . serve If and remand the reversal delay, purpose involving purpose, than the other move in delicate area We command must understood be and federal the relations between state fully of the crucial trial de novo Immediately blown re- involved courts. principal the state factual issue in spect and the which should be accorded ap- as now finality may court murder trial. So far which be attributed to substantially pears, retrial that a con- of the state courts presented will be same fession received in the state in evidence voluntary. same witnesses who testified impor- trial court was proceeding. tance of the resolution justice administration dual effect, reversal seems Whatever its judicial systems outweighs far the effect important prin me to run counter to two prisoner. of the decision this state ciples. a fair determina The first is that important Because it is and because the fully litigated tion in of a majority opinion seems to broaden me to accepted as con issue unduly corpus jurisdiction, the habeas Court when the clusive the District compelled my I feel to record dissent petition for same issue is tendered on my from the views of brothers. corpus. The second a writ of habeas that, case, in such a if the When matter came before *6 Court the factual issues reconsiders not, District it did as it usually independent findings, done, accept makes without re-examination the should to evi limit its consideration factual determinations a dence adduced in court if appraised courts. It examined transcript filed testimony of that has been week-long evidence taken in the mur- readily with it available.2 concluded, or der trial. a con- “[a]fter case,” sideration of the facts in this Admissibility of the Davis confession that Davis had not shown the confession upon questions. turned The facts involuntary.1 to have been 2This court sharply dispute. were ground plenary reverses on the that a testified, in the Davis absence of hearing held, should have been and it nothing. jury, He he confessed to orders District now to hold- beating. said was threatened with he hearing and to such receive and con- cemetery Carried where this bru- evidence sider be then elderly rape-murder an tal3 woman offered. occurred, things pointed the officers out despite it does This the fact that Davis nothing, him, to but he told them of sought no such of the District he had not committed the crime. He did He none Court. seeks now. He stood he had led the admit officers to upon record, which nearby place where had he hidden his fully carefully stealing prison Later, con- after others. shoes sidered. He stands it here. testified, He he an innocuous statement was suggest sign does he to wishes read to and he him was told to it. offer, offer, anything or he signed could it, He because he was afraid and Carolina, E.D.N.C., v. North coroner, pathologist per- Davis 3. The who E.Supp. 488, 493. complete autopsy, formed a was of the injuries opinion that of her were several Allen, 443, 480, Brown 73 S. Ellis, thought enough fatal, but he severe to be 469; Stickney Ct. 97 L.Ed. Cir., 755; was stran- immediate cause of death Sigler, F.2d Wilson v. Cir., gulation. 285 F.2d ap- promised notation is the fact that a

hungry, There he and because pears sign his arrest record that he did on he and a if food bath anyone to not to or nonincriminating admit- be allowed to see He statement. page telephone. use the Most the officers signature second ted his nothing knew confession, All testified denied of them but it. of the written and un- to read order was unauthorized page had been that all of that himself, he enforced. is uncontradicted not read it him. He did except his that Davis asked to see no one could read. expressed her sister. He wish to see quite officerswas on October 1959 after he and several contradictory no There were Davis. from detectives returned to Charlotte promises. were no threats. There they attempt- Asheville had been where freely rights, con- fully informed of his buildings identify to Davis which fessed one the officers. to burglarized. claimed Davis officers, cemetery with several one find the of the detectives could not and led them the crime re-enacted directory, telephone sister’s name in the places his had concealed where he day, days the next four before Later, clothing. prison shoes and other confession, the resi- detective located her attentively and commented he listened message dence and her. delivered frequently dictated of the officers as one children, her she Because said she stenographer’s When confession. could not then leave her home but that transcribed, he read two were *7 question. tional There were no kitchen at facilities peripheral There matters. were City the Charlotte Jail. Purchased advanced The real contention Davis sandwiches constituted the food solid anywhere given day that was prisoners. is his detention here fare Twice a unlawful, prisoner given and that his unlawful detention each was two sand- holding requires a that the confession wiches.6 The officerstestified that usual- Though involuntary. escaped ly an was there were extra sandwiches and some prisoners prisoner only from lawful detention a one, that, wished so usual- ly, prisoner for assault with intent to com- conviction who wanted them could rape, he could not detained after mit even three or four sandwiches at arrest, says, promptly According unless he officers, his each meal. to charging occasion, awith warrant him with served on one Davis asked for hot escape or with the crime of the murder sandwiches rather than cold ones Cooper. This contention, Mrs. of so occasion, offered him. On that hot ham- misconceived,5 burger patently the court does pro- sandwiches and milk were dignify given discussion. not with cured and to him. -trial, true, majority 4. Late one witnesses observes, It is as the ap- point, only on fact Davis got commented at one said he one reading peared to have been a Bible sandwich at the 6:00 o’clock meal. In the throughout the trial. very however, breath, said, next you just got “Man, I I told two at 6:00 Carignan, United See States L.Ed. o’clock.” they they them, When not unin- could confirm diet of sandwiches willing sixteen-day during period. Ashe- took with them to terrupted Davis nearby places, 2nd, ville and un- were but Davis was there On 1st and October identify able meals, house to of crimes.7 regular, scenes his hot one others of the detectives one of investigative nothing There is in such Moreover, admitted Davis Asheville. procedures suggestive oppression or of “brought me detectives one of illegality. Nor lawful does otherwise along” peanuts that all and stuff like detention become unlawful coercive or according which, things cigarettes, when, for en- the convenience of officers requested detective, not be- to the Davis gaged investigation, in a current hunger, simply because cause of but prisoner temporarily jail is held in a liked them. readily where he is accessible to the protracted There no officers. testimony interrogation. There was Finally, claim, such, makes Davis Cooper mentioned murder was not rights. that he was not informed of his and, a week- to Davis until October 2nd “allegation,” If there is a claim or again intervening, men- end testimony it is inferred from that on 6th, when tioned him until October to October 6th he was and in- threatened readily tes- There was Davis confessed. sign paper promise duced to assigned timony Cooper that the food. The direct consisting to the division entire detective point officers, is that of the said who twenty- twenty-nine Each men. fully that Davis was of his informed something do nine have had rights. constitutional The written con- case, with the for there a number fession recites the fact that he was. suspects, but there is no evidence foregoing apparent that more than four five of them ever From or evidentiary for the was an basis talked to Davis there Davis. testified voluntary. every spoke him confession was one more of them or hearing, day. doubt- If there had never been is not clear that he intended “allegations” petitioner say they day spoke him less each one, case, require Cooper but there about no would suffice suggestion grueling hearing, a full and the evidence has been or extended interrogation. supports of the state trial session Judge judge, has which the District questioning The officers were Davis now concurred. daily, nearly so. At the time of clothing arrest, he When, trial, civilian in the murder ob- possession he had jected in his number admission the written *8 suspicion. confession, articles jury which aroused their excused. In the the was They got issues, wished jury, he know where the factual absence things where, escape, admissibility and after he upon his which the clothing. prison fully developed dependent, his Davis told discarded were was through testimony thefts entries he had com- them of the of Davis vicinity Asheville, in the of mitted the On the basis several of officers. of sought judge testimony, the officers to check those stories. trial ruled the petition pertinent did not tell them of the thefts he 7. Davis In the are no al- vicinity legations beyond conclusionary in of committed the Elmwood the state- Cemetery Charlotte, involuntary until after his ment that the confession was places By reference, them when he led to the confession and coerced. prison incorporated his he had concealed shoes where within it the entire record of dothing. Earlier, proceedings other he had in- the state courts. The petty “allegations,” majority opin- of that all larcenies had sisted to which the refers, in the near been committed mountains are from ion extracted the evi- evidentiary Asheville. dence offered the full hear- ing held in the state court. charge voluntary and ad- has never found fault with the confession on that score. missible. judge appeal, On direct the North Carolina trial After the Supreme carefully voluntary and the reviewed and admissible fession support jury’s return, of witnesses evidence and held it a number sufficient finding on the vol- cross-examined that the confession was

were examined and untary.9 affecting voluntary performing appellate nature its matters peripheral function, All it was unembarrassed the confession. matters, findings specific detention the duration of the absence of detailed and city jail, questions. notation on subordinate It did sister, record, arrest remand visit nor more officers’ food inquiries received and the did it Davis order a new trial because of their him, fully developed affirmed, absence.10 It would do as we presence appeal Judge, in the of on taken direct if a after District testify jury. hearing conflicting evidence, the presence did not had found jury generally so that his testimoni- the tendered confession 6th, voluntary al the events October version of and admissible.11 executed, was when the confession was Though general finding by a Dis- jury only inferentially before the from Judge trict that a confession was volun- negative of witnesses who statements tary and admissible unassail- testify. did appeal, able in this court on a direct though the North Carolina it, On the basis the evidence before having Court has treated it resolved guilt jury’s verdict controversy, the factual this court now voluntary. confession fact that the says ruling by that such a trial jury, In his to the instructions judge requiring is a “fatal flaw” a i’e- judge reviewed defendant’s conten- trial in the federal courts of the factual tion confessed mur- had not - controversy it settled. implicated der and that if he himself any way, did when he so me, To the doctrine is both novel and hungry, he had threatened when been alarming. ought There be a double indicating and under other circumstances here, general standard for we have no involuntary. jury conduct was jurisdiction judgments to review the guilt told that reasonable doubt of Certainly ought state courts. could be founded doubt the prescribe stringent more rules for state voluntary. confession was judges If, than for federal. general circumstances, similar slightest There is not the indication Judge by a District would be treated as judge jury applied that the trial or the facts, surely determinative legal an erroneous standard when re- finding by judge a state trial should solving essentially factual issue of be so treated us when nature confession. Court has so treated and has con- charge What the court said jury its in it. curred jury indicates that both recognizes majority legal appellate applied proper If standard. general finding accept charge portion *9 a of the have been voluntary. elaborated, request confession was is said to Davis did This not it and 86, parable 9. v. 253 rule Criminal Rules. State N.C. 116 S.E.2d requiring is no rule There pause Judge in and case make so, course, 10. It was not asked to do findings ruling specific of fact when but neither is court. admissibility of evidence. 11. Rule 52 of the Federal Rules of Civil requires Allen, 443, specific findings 506, 344 12. Brown v. U.S. Procedure 73 nonjury 397, 97 civil is no eom- L.Ed. cases. There S.Ct.

913 significance appellate courts ment would have been of result from the fact inquiries. corpus habeas There is have no facilities for court. grant- possess Supreme doubt that is had the It true that do Court writ, for facilities, the reason ed the it but that is not would have considered sufficiency is appellate practice. The reason of the evidence support finding judge finding, treating is due that the of the judgment respect dispositive other court fac- in this and as it of the receives appellate Supreme tual If it is not due issues.14 Court courts. Had the nonjury respect, judgment,15 a District if in affirmed the North Carolina Judge requisite corpus fails make re- habeas court be findings, quired disregard power judg- to remand we have the court findings trial. for or for a new ment additional as a resolution of the historic retry defective, When the are the confession issue ? The ma- appellate remedy. jority says would, is It is because holds it it general corpus is finding accept a confession habeas though finding finding, perfectly is not defective and admissible is finding accepted acceptable that it in this appellate as is courts on direct foreclosing appellate all other courts as review.16 sufficiency. questions except of principles govern For the which should Supreme here, Allen, We are told Court’s us I turn first to Brown v. majority. denial of the is par- certiorari as does the I do so with significance appraisal without to an readiness, ticular Brown case is for the proceedings.13 precisely the effect If of the earlier like this one. involved a Supreme granted writ, had prisoner North Carolina who claimed however, if on direct review the North confession had been When he coerced. judgment fully objected Carolina it consider- to admission in confession, jury ed claim and, the constitutional Davis ad- was excused here, surely judg- vances its considered police absence, Brown two officers its Allen, 443, expects 13. Brown v. 344 73 S.Ct. one unlike the factual to tender 397, 97 L.Ed. 469. in the habeas court? Or must he respect exhaust state court remedies with Spano York, 315, v. New 360 U.S. general finding contention 1202, 1265; Gallegos S.Ct. 3 L.Ed.2d v. final ? was not a determination of the facts Nebraska, 141, 55, 342 U.S. 72 S.Ct. requirement The latter would be as fruit 86; Carolina, L.Ed. Harris v. South first, question for if less as the 68, 1354, 1815; 338 U.S. 69 S.Ct. 93 L.Ed. appellate in the state raised courts and Pennsylvania, 62, v. Turner 338 U.S. Supreme in the United States 1352, 1810; 93 L.Ed. Watts v. clearly infirmity courts would find no Indiana, 49, 338 U.S. 69 S.Ct. general finding because of its want 1801; Haley Ohio, L.Ed. 332 U.S. specificity to subordinate facts. But 224; 68 S.Ct. 92 L.Ed. Malinski v. finding infirmity held if the to be without York, New 324 U.S. directly, holding when reviewed 1029; Lyons Oklahoma, L.Ed. implicit in the treatment the issue 596, 64 S.Ct. 88 L.Ed. 1481. sufficiency evidence, is the great probability 15. The is that it would corpus court bound to hold affirmed, sufficiency question have for the did not the effect which is insubstantiál. quite direct review all courts on correct ly held it to have had? majority right view, If 1 6. in their says majority what becomes of the doctrine of exhaus it is. I think that pris tion remedies? Is the state court court’s when a state is in such seeking oner a retrial of the confession the United States form that review, accept before a federal re will to be on direct it as joust quired to with windmills as a conclusive determina- sufficient appellate courts and in the United States is no business of ours tion *10 Supreme only possible say corpus Court where the court a habeas errs if it sufficiency issue is the of sufficient or the evidence to the as if it at- treats general support finding, significance quite any the an issue to it. tributes addressing point The was not differed. himself to this testified. Their stories applied generally, found, particular facts of the then voluntary.17 and Brown case. He suggestion free was concerned with confession was again ground corpus juris was Later much of explored the habeas jury ex- presence diction should be more limited its in the of and testify rigid cept by in the exercise controlled His that Brown did rules.20 opinion jury’s powerful presence. jury exposition him is a The of the guilty. jurisdiction reme- view should Brown exhausted his sought corpus in protection habeas available when dies and then essential to the petition rights, was District Court. The constitutional its ex hearing. governed general by This court ercise denied without a should be affirmed, turn, principles rigid affirmed rather than rules With which the United Court. would leave no room for exer States proceedings exactly judgment by like cise of a District Court. state, exposition exact- In the general trial court of the same of his course ly general views, as to same kind he referred to contrast ing point of the confession nature situations to illustrate a unnecessary corpus held to retrial the habeas make court earlier some adjudications corpus weight of the factual issue in the habeas are entitled to more Speaking apparently than petitions court. others. postconviction relief, very point upon which we now dis- that in some said cases state court agree expressly considered de- “has held rendered a deci termined in Brown Allen. Brown specific findings fact;” sion based on corpus tended that the federal habeas while, pole per “[a]t other is the court committed error when refused functory denying memorandum order the writ of the state court basis badly stating simply drawn taking record without evidence and re- petitioner that the is not entitled to re trying disputes underlying the factual rehearing lief.” His statement that a constitutional claims.18 conten- corpus facts habeas rejected. holding tion was is sum- only the former situation “would make statement, marized in the “Since the repetition for burdensome and useless complete record [of the state court effort” was not to be intended exclu proceedings] was before the District sive, dealing for he was in illustrative rehearing there was no need for contrasts. taking of further evidence.”19 There from dissent that conclusion. Mr. Was Justice Frankfurter of the opinion holding rehearing If one that a overlooks the of the be re- quired point Court on and considers court if the concurring opinion general of Mr. court’s Justice rather Frankfurter, majority specific? Obviously not, which a than joined for he concurred, judgment the answer seem of the Court that required uncertain. But Mr. Justice Frankfurter Court was not rilling appear heading “Right Plenary 17. The court’s under does not published reports. Hearing,” seq., verbatim in 344 U.S. et published reports, none how- any suggestion ever, specific is there 44§ findings resolving controversy. the factual concurring opinion 20. See of Mr. An examination Jus- the record confirms Jackson, seq., tice et the fact there were none. S. The find- Ct. 397. as to certain admitted entirely general but was as to the 21. 344 U.S. 73 S.Ct. 444. dispute. opinion 18. See Mr. Reed, particularly portion Justice

915 puted portions of the record. Brown where in the facts rehear the agree- complete finding has general ‘[T]here confession been the that the by unaccompanied voluntary ment that in conflict was was actually underlying as to led what to a contested specific the of dispute. confession is not Court’s con- in were as those facts insofar cern. au- Such conflict comes here agree in Thom I the cannot thoritatively [against peti- resolved 885, 390, Arizona, 356 78 S.Ct. U.S. as v. by adjudication.’ tioner] the State’s “merely 863, the usual restated 2 L.Ed.2d Indiana, 49, Watts 338 51- v. U.S. rath practice” appellate review on direct [, 1347, 52 1348, 93 S.Ct. L.Ed. adjudica prior er the than the effect of (1949). again 1801] Time by cor habeas the when considered tion disputed have refused to consider up the pus from The court. case came determining facts when issue of the that, corpus in the Su court, so Gallegos Nebraska, coercion. See posture preme same was [, 342 U.S. 60-61 72 S.Ct. Nor can Court. this case in this as is 144-145, (1951); 96 L.Ed. 86] by agree resolved fact the I issue Haley Ohio, 597- general the [, court’s 92 L.Ed. voluntary (1948); “was not Texas, 224] Ward v. confession [, significant U.S. 547 under the 86 L.Ed. one particularly (1942). 1663] The rationale behind was crucial.22 circumstances.” exclusion, course, lies the issue, respect the factual to that With superior opportunity of trial court being emphasis said, the Supreme Court jury to observe the witnesses Court’s: weigh fleeting intangibles * “* * which indicate truth false- or the merits Whatever by hood. clearly abide inquiry We the wisdom of dispute, our of this reasoning. study the undis- limited to a murder, suspected lynching presence Thomas, was dis- and the threats Sheriff of armed men when each confes- and arrested covered heading posse Arizona, County, sions was taken. earlier oral confes- Cochise sion, voluntary, Thomas was found men. After been 12 to 15 patrolman, presence highway however, because of the handcuffed Sheriff, posse, a mounted rancher Justice of the Peace and a member protector. neck and who had been defendant’s Thomas around lassoed jerked steps doubt in the direction of There was no the Sheriff him a few again protector, he was had Later been the defendant’s trees. nearest judge specific rancher no the trial made find- mounted another lassoed conflicting testimony pulled interven- The Sheriff as to to his knees. lynch- stopped pro- these overt threats whether the Sheriff conditioned his ed and ing. trial, However, upon telling tection the State defendant’s patrolman highway testified that when truth. roped time, proceeding, first the habeas there- Thomas fore, you truth, said, toll the Thomas contended that first “Will Sheriff go and do oral them ahead this.” confession was infected let same I will making subsequent the statement. threat which invalidated the denied The Sheriff orally Sheriff, day pres- written ones. The ent, who was Thomas admitted next contended, presence guilt of a Justice of told him under very Later and of the Sheriff. two dramatic circumstances that he Peace taken, lynching permit were each if he did not confessions written presence instance, of several armed tell the truth. ultimate conclusion the oral confession was men. depended thus resolution these confessions offered When court, preliminary dispute hear- over state trial Sheriff’s words. the ing significant jury. highly fact, As to that held the absence of conclusion, ruled the state trial At its general finding court. There was inadmissible. He written confessions involuntary voluntary. them the confession because *12 916 wrong- suggested the District Court an alternative has “Petitioner ly ac-

prayer exercised discretion when it remanded its case be that his finding cepted general plenary trial of the for a to the District Court hearing court conflict- as determinative of the of coercion. on issue ing merit, however, physical evidence of abuse. There is no District Court contention that again, Appeals Time and Courts of denying erred in the writ on the Judge have held need that a District basis of without a full the record retry corpus proceeding in a habeas hearing. granting of a hear- underlying admission issues ing is within the .discretion ,in evidence criminal Court, Allen, Brown v. 344 a confession the defendant claimed which [, 397, 443, U.S. 463-465 73 S.Ct. many of these been In coerced. (1953), 410-411, 469] 97 L.Ed. cases, applied, as in the Su- rule is appears no abuse of that discretion preme Court, find- when the state court 402-403, here.” 356 78 S.Ct. U.S. general only specific and without subsidiary disputed as to evi- dentiary applicable, facts.24 The rule is express Thus Thomas Arizona is an v. course, only if the holding dispute under- that the factual of the confession has nature lying admissibility of the confession fairly been heard the state court general finding is resolved of the fairly however, today, Until resolved. finding being judge, state trial there is deter- doctrine upon appellate clusive the federal subsidiary dispute mination corpus in a later proceeding habeas if prerequisite is a such a conclusion accepted the District Court it as such. fairly and deter- heard hand, Court, The District on the other mined the issue. may accept has more latitude. or, discretion, finding, state court in its upon Court, The cases in this which may dispute reconsider the and make They majority relies, inapposite. are findings. its own When there has been pole are close nether of which discretion, no abuse of that this Court spoke Mr. Justice Frankfurter in Brown right say has no it must be exercised contrasting Allen v. when the extreme way one or the other. adjudications. differences between state finding Cases which there was no approach The same followed the the state court do not bear Supreme most recent case in the Court. weight corpus give the habeas Pate, Reck v. 367 U.S. general finding of a state court made 6 L.Ed.2d the District Court evidentiary at the conclusion aof full corpus proceeding in the habeas disre- garded complete when record physical brutality corpus part before the habeas court. police because of the general, entirely unspecific, Holly Smyth, Cir., Thus in 4 F. v. 280 state trial court that the confession 2d the habeas attack- voluntary.23 pro- ed a state court conviction. There were ceeded on assumption, allegations same right denial of undisputed as out- counsel and of circumstances which lined the District recognition disclosed require right coercion as a matter law. No one of counsel under doctrine of Betts 23. The ney Cir., is set ont Ellis, 755; verbatim foot- v. 286 E.2d 5 Wooten dissenting opinion, note 1 of 900; Bomar, Cir., v. 6 267 F.2d Wilson 450, 81 S.Ct. 1551. Sigler, 372; Cir., 285 F.2d v. 8 Muhlen Cir., Heinze, 881; Vallee, broich 9 281 F.2d Cir., v. United States La 2 v. 279 396; California, Cir., F.2d U. rel. S. ex v. 9 284 F.2d Kulikauskas Schlette Murphy, Cir., 563; Cir., Applica- Smyth, 2 F.2d 4 293 827. And see Newsom v. Tune, Cir., 883; tion of 230 F.2d Stick- F.2d 452. accept- Brady, form that it commanded every appellate an ear ance in had been direct 86 L.Ed. 1595. There court on corpus proceeding in review lier as a final determination *13 courts, proceed proceed- facts. The full but the record of record of the ings ings in Court. was not the District reviewed before state peti corpus The District dismissed habeas court. rely insufficiency. tion It for did suggests No one the issue any finding court, upon fairly coercion was not tried in the state any it.25 kind was before fairly court and There determined. doing Necessarily, reversed, nothing suggestive proceedings in those precedent disposi so created no for our of a fatal flaw. The constitutional issue tion of case. this ignored. was not There was deliberate Martin, inquiry it, United ex States Sileo v. into trial rel. and the court’s inapposite. disposition Cir., no less F.2d the issue merited the af- postconviction proceeding appeal. A in the state firmance it received on direct ex- court had been dismissed without I find thus in the decisions of the readily planation. as dismissal Supreme Court and of the Courts of legal upon could have been founded Appeal commanding authority which re allega- insufficiency conclusion of quires sup affirmance I find no here. discharge require tions to as port for reversal. After a re careful allegations. disbelief It could of those proceed view of the entire record not be with that the said assurance ings courts, in the state the District explana- state dismissal court’s without Court exercised the discretion vested general finding tion awas of fact. accept it to court’s determina thought If tion be indicative of of the facts. It went It further. Appeals independently appraised the view the Court of for the the evidence present Second Circuit would take of the offered in the murder trial and con thought situation, dispelled finding. If, be curred in should the state court’s circumstances, the later ease of United ex in other States rel. a District Court Murphy, Cir., Kulikauskas v. F.2d be said to have abused its dis refusing 563. There it was held that the cretion in to hear additional justified accepting gen- evidence,26 Court was no such abuse can eral of the state when court that there was no such refusal. confession was and that a re- judgments my brothers have trial habeas court of the great my respect. Whatever the infirm- dispute necessary. factual was not my perception, however, ities of own Here, my judgment in contrast I when find so cases cited much at odds majority, finding. great principle there was a with theirs as to a unspecific importance, duty it was While as I have a details I of dissent. underlying dispute, respond duty. it was to that Court, an In this order An exhibit entered fense. from the corpus proceedings Holly in the Hust- indicated that had no counsel. ings Court of Portsmouth was tendered. Even the full record of proceedings present Hustings recited that counsel was appeared produced. been, the trial Holly’s that counsel was not Had it what- revealed, behalf as well ever it it could not his co-de- have saved alleged case, perform fendants. for this Court cannot Judge. represented his co-defendants were the office of the District counsel, circumstance which See, however, thought aggravated Holly’s the cases cited in footnote to have dis- advantage 2, supra. undertaking his own de- notes go she would see her she brother when signed carefully pages written go him, could. She did and she see jail he had been one. second While went, though saw him when none of she reading a Testament.4 the detectives could recall whether this truthfully Plainly, if recited was before after the confession. and evi- written confession sought No else his one Davis until dence of oral and demonstrative see sought They after confession. who fessions were all inadmissible. Those during to see him if the facts in Char- were all admissible detention away. lotte were officers not turned to which the testified. There lurked there subtle constitu- There matter of food.