Neil v. Biggers

PETITIONER:William S. Neil, Warden of the Tennessee State Penitentiary
RESPONDENT:Archie Nathaniel Biggers
LOCATION: Beamer Residence

DOCKET NO.: 71-586
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 409 US 188 (1972)
ARGUED: Oct 18, 1972 / Oct 19, 1972
DECIDED: Dec 06, 1972
GRANTED: Feb 28, 1972

ADVOCATES:
Bart C. Durham, III – for petitioner
Michael Meltsner – for respondent

Facts of the case

A Tennessee state court convicted Archie Biggers in the rape of Margaret Beamer. The only major evidence against him was Ms. Beamer’s identification several weeks after the incident at a police station “show up”. The “show up” was similar to a line up, but contained the suspect alone. The police officer also had the suspect say phrases Ms. Beamer heard her attacker say on the night of the rape. Ms. Beamer said she had “no doubt” that Biggers was her attacker. The Tennessee Supreme Court upheld the conviction. The U.S. Supreme Court affirmed by an equally divided court.

Biggers then filed a writ of habeas corpus, which the district court granted, holding that the Supreme Court affirming by an equally divided court did not bar the writ. The court also held that the “show up” procedure was so suggestive that it violated due process. The U.S. Court of Appeals for the Sixth Circuit affirmed.

Question

(1) Does the Supreme Court’s order affirming a conviction by an equally divided court bar habeas corpus proceedings?

(2) Was the “show up” procedure so suggestive that it violated due process?

Warren E. Burger:

We’ll hear arguments next in 71-586, Neil against Biggers.

Mr. Durham.

Bart C. Durham, III:

Mr. Chief Justice and may it please the Court.

This case here is on a petition for writ of certiorari to the Sixth Circuit in which two questions are raised.

The first one is, in respect to a case that was here before and affirmed four-four by this Honorable Court.

The second one is; the Stovall question as to whether or not this defendant had a fair pretrial confrontation.

In order to give Your Honors a background, I’ll state the chronology of the case, it was here in 1967 and ’68.

The crime occurred in January of 1965.

The defendant was identified at the police station in that year, and his subsequent trial and conviction was affirmed by the Tennessee Supreme Court in March of 1967.

This Court granted certiorari, and the case was argued before this Court in January of 1968.

Mr. Justice Marshall recused himself, and the Court after hearing plenary arguments, affirmed at the Tennessee Supreme Court which had affirmed the rape conviction by a vote of four-four.

There was no written opinion from the Court, but Mr. Justice Douglas recorded the reasons for his dissent as one the four dissenters.

Shortly after the case was affirmed in March of ’68, this defendant went right back into the Federal Court System by filing a petition for writ of habeas corpus, seeking to re-litigate what the state contends as — was the same issue before the Federal District Judge in Nashville.

A plenary – a limited evidentiary hearing was held, and the court found that the pretrial confrontation was violative of this Court’s principle in Stovall, and ordered a new trial unaffected by the valid identification.

The state took in an appeal to the Sixth Circuit from the United States District Judge opinion, Honorable William E. Miller, who is now a member of the Sixth Circuit and, the Sixth Circuit by two to one division, Judges McRae, and Brook, and Edwards, in the majority with a lengthy dissent by (Inaudible) to Judge Brooks.

That court affirmed the District Court from whence this Court has granted certiorari.

So the two questions are; what is the effect of a four-four affirmance with respect to habeas corpus, and did the defendant have a prior pretrial identification?

With respect to the first question, we think the law was quite clear and possibly conceded by, adversaries it says, that with respect to any other case except the habeas corpus case, a four-four affirmance ends the case, as between the parties, and as to that matter.

Some distinction has been made by the Federal District Court, because this is not an ordinary civil case, it involves human liberties, and we think of the higher position in our jurisprudence which habeas corpus hold.

But, we say that historically and traditionally, there has to be an end to litigation, and that it should have ended this case.

But our primary contention with respect to this, is an act of Congress, 28 U.S.C. Title 2244 (c).

That statute provides and that’s what we’re relying on here, it is found at page 3 of my brief, that that statute was drawn specifically to provide for finality of determination.

When a case has been to this Court and been — a judgment of this Court, it says, “Shall be conclusive as to all issues which were before this court.”

And we cite the legislative history of that statute, as well as commentary in the Harvard Law Review and others, in which we feel it’s clear that Judge Oren Harris of the Tenth Circuit in his letter —

William J. Brennan, Jr.:

But Mr. Durham, I gather you have to argue the significance of what actually the Court adjudicated, don’t you?

Bart C. Durham, III:

That’s right, Your Honor.

That’s —

William J. Brennan, Jr.:

And really, I suppose under the statute.

Bart C. Durham, III:

I beg —

William J. Brennan, Jr.:

Is a four-four, is that disposition actually adjudicated?

Bart C. Durham, III:

Yes.

William J. Brennan, Jr.:

And do you — you know, at least I have been able to find much help in the legislative history to support your argument.

Do you find any?

Bart C. Durham, III:

I think — no sir, I don’t find anything particular — exactly other than that —

Byron R. White:

Well, it does have the tape between the parties.

Bart C. Durham, III:

We think that it ends the case between the parties as to that issue.

Byron R. White:

(Voice Overlap) Yeah, it is an adjudication between the parties.

Bart C. Durham, III:

As to that issue.

If that be the law, then our arguments won.

But does it – we cited it ends the case between the parties as to that issue.

Warren E. Burger:

Do you say that it’s just like a five to four, or a nine to nothing, except as to the precedential value of the reason?

Bart C. Durham, III:

Yes sir, yes sir, Your Honor.

Potter Stewart:

You said it was true in ordinary litigation, in the absence of the statute, you’d be faced with a proposition, wouldn’t you, that there is no res judicata in habeas corpus.

Bart C. Durham, III:

Yes sir.

There is no res judicata in habeas corpus, except Congress has said that —

Potter Stewart:

Well, I say, absent the statute.

Bart C. Durham, III:

Oh, excuse me, that’s different.

Potter Stewart:

Yes.

Bart C. Durham, III:

That’s because it’s common law, there was no appeal in habeas — in the habeas corpus.

Potter Stewart:

Well, whatever the reason, it’s well settled I thought.

Bart C. Durham, III:

Yes sir.

Potter Stewart:

Tell me if I’m wrong that ordinary concepts of res judicata are simply inapplicable to habeas corpus proceedings.

Bart C. Durham, III:

Yes sir.

And the reason I suppose I think —

Potter Stewart:

And that’s the reason as I understand that you’re relying so heavily on this statute.

Bart C. Durham, III:

Yes sir.

And I’m going behind that explaining the reason that — if that law is it — but there is no res judicata was because there was no appeal.

Potter Stewart:

Right.

William H. Rehnquist:

Mr. Durham, supposing in this case instead of the four-four affirmance there had been as the Chief Justice suggested a moment ago, an affirmance on the merits by nine to nothing, eight to one, some rather lopsided majority.

What is your opinion as to whether a federal habeas on these same issues would then lie in the District Court for this particular petition?

Bart C. Durham, III:

Well, my opinion Your Honor is that the District Judge would recognize this Court’s case law, and would’ve found — would have refused to entertain the case, as well as it’s controlled by the same statute.

William H. Rehnquist:

You say then in effect that although as between lower court decisions, there may be no res judicata in federal habeas, if this Court has once affirmed on the merits, that ends not only the direct litigation, but further habeas corpus.

Bart C. Durham, III:

Yes sir.

We think that the case law is —

Potter Stewart:

In the absence of new client?

Bart C. Durham, III:

Yes sir.

Potter Stewart:

Even though between the same parties?

Bart C. Durham, III:

Yes.

Potter Stewart:

And even though the same constitutional provision is invoked?

Bart C. Durham, III:

Yes sir.

There can be a new like the Burton Rule or something might come up which Your Honors suggest on the case law makes those changes.

Now, as Mr. Justice Brennan said, “The legislative was history to the extent that there is any and hidden much as in — exactly clear.”

But we did feel, that what little there is, does support our position.

However, we are not — by succeeding doing nothing more in my oral argument today, I do want to stress the second point of our contention, and that is on the facts, the District judge grievously erred in finding that there was a bad confrontation.

The — ordinarily, I’m aware this Court wouldn’t want to go into the facts, where the District Court has found facts, and Appellate Court has affirmed it, and I’m asking Your Honors to look again at the facts.

But the point is that the District Judge didn’t hear any new facts and he didn’t weigh the credibility of evidence.

We say that he made seven grievous sins.

We cite five of those at page 34 of our brief, and in addition of those five, earlier we mentioned the error that the District Judge made when he said that the victim changed her story, and between the time of the trial and the habeas corpus hearing, and that the police officer changed his story between the time of the trial in the habeas corpus hearing and that just isn’t simply so.

The fact of the matter is, the lineup was held.

There were only three people who testified about the lineup and I’m talking about the original trial record now.

Those policemen were Detective Smith, Lieutenant Daniel and Detective Bailey.

Detective Smith at page 40 of the record, and Detective Bailey at page 48 of the record, said that this victim identified the man before she heard him speak.

And that she thereafter asked him to speak merely to confirm her identification.

I say in this, and I make an analogy in my brief as one of the judges in the lower court did in Stovall, what would be the argument had that lady in Stovall case died, and they not taking the man over there to view Mrs. Barrett, the victim in that case.

So, they brought —

William J. Brennan, Jr.:

Well, I suppose there was the difference.

As I recall it in Stovall, the victim was an extreme, they didn’t think she was going to survive the night.

Bart C. Durham, III:

Yes sir.

William J. Brennan, Jr.:

But I gather that wasn’t the case here, was it?

Bart C. Durham, III:

Oh, no sir.

William J. Brennan, Jr.:

No.

The victim, as I remember the facts, viewed the young man at the police station many, many months, was that after the actual crime.

Bart C. Durham, III:

Yes Sir.

William J. Brennan, Jr.:

And no problem about her health or anything else, suggested then was —

Bart C. Durham, III:

The trial counsel —

William J. Brennan, Jr.:

Yeah.

Bart C. Durham, III:

At the time this case was decided, no American Court that I’m aware of had ever held that the identification was anything other than a question of weight and not admissibility.

The weight even lower court cases were to come later.

This was in January — August of 1965.

So the State believes that the record is un-contradicted, that the facts were that she identified them first, all the parties were black, the defendant was in the company of two black officers, she made — the victim made this identification, then she requested that he speak.

Even the victim himself in his affidavit at the federal habeas hearing doesn’t — his affidavit we cite don’t contradict it.

No, the third officer who testified about the lineup was the Supervising Officer, Lt. McDaniel.

And it’s unclear from his trial testimony, whether she identified him first or heard him speak first.

But at the habeas hearing, he — his memory had been refreshed.

But we say, it wasn’t the point at the trial testimony, who cared?

Nobody asked on cross-examination, nobody brought it out, whether she heard him speak first or she didn’t.

And those are the five errors as I say, I’ve listed in the page, beginning at page 34 of my brief as just factual errors which the District Court, just made an error on.

In defense of the district judge, let me say that I’m the fifth or sixth attorney who’s handled this case for the state, and when the habeas petition was filed, the factual aspects were shuffled off in the second place, because the state felt that as a matter of law that we should have prevailed based on my first argument.

So these facts were never really strenuously argued to the District Court, but they are un-contradicted in this 1965 transcript.

And we point out that by analogy to some of the other lineup or rather one on one confrontation cases which this Court has made that we believe this lineup is as far as is constitutionally impermissible than others.

I conclude.

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Durham.

Mr. Meltsner.

Michael Meltsner:

Thank you Mr. Chief Justice, may it please the Court.

It is far from accidental that with respect to the consequence of a four-four affirmance, the State relies on the statute here.

It goes — its position of that a four-four affirmance would bar an initial federal habeas corpus petition claiming a denial of due process, fails to come to terms with several principles which have been quite prominent in this Court’s decisions in the area.

The first is that a state court’s disposition of a state prisoner’s federal constitutional question is not a conclusive determination of that question, and that each state prisoner will at least have one opportunity to obtain a resolution of this federal constitutional claim in a federal forum.

When this Court affirms by an equal division, it merely leaves standing a state court determination of federal question, whatever it is.

Indeed one can imagine quite easily the Court affirming by an equal division to totally inconsistent lower court decisions.

Michael Meltsner:

Yet, the position taken by the state here would convert this state court disposition of a federal constitutional question into an absolute bar that will be habeas corpus.

William J. Brennan, Jr.:

Will the situation be any different Mr. Meltsner if suppose where a grant here asserted on direct review —

Michael Meltsner:

Right.

William J. Brennan, Jr.:

— of the State Court decision, and we divided four-four to affirm the conviction brought here by the state prison.

Is there this difference in that situation —

Michael Meltsner:

Well —

William J. Brennan, Jr.:

— as to the availability of federal habeas from the situation we have here, which is a four-four affirmance act or grant of cert — to a — and a federal habeas?

Michael Meltsner:

If I understand your question correctly Mr. Justice Brennan, the difference is that in this situation Congress has decided to make federal habeas corpus available to the petitioner for collateral attack.

William J. Brennan, Jr.:

At (Inaudible) where this Court has actually (Voice Overlap) —

Michael Meltsner:

Actually decided.

William J. Brennan, Jr.:

Well, that’s my question.

Michael Meltsner:

Yes.

Which —

William J. Brennan, Jr.:

Assuming this statute, this statute would apply I take it, whether or not require a determination to whether there was some actual adjudication.

Whether or not our four-four division was on direct review of the state conviction, or was a four-four division on a one federal habeas review?

Michael Meltsner:

The only difference would be that again, if I understand your question that in the latter situation, suppose this Court would have four-four affirmed this case at this point —

William J. Brennan, Jr.:

Well – what it will be four on habeas, was it –?

Michael Meltsner:

No, it was here on direct review.

William J. Brennan, Jr.:

Oh!

Was it direct review?

Michael Meltsner:

A direct review.

William J. Brennan, Jr.:

Okay.(Voice Overlap)

Michael Meltsner:

But if this court were to four-four affirm now —

William J. Brennan, Jr.:

Yes.

Michael Meltsner:

— at least there would be a federal court’s determination of the federal question standing.

And one of the statutes involved in the case, 2109, of the Judicial Code makes quite clear that in Congress’ contemplation at least, the highest court that can determine this question ought to determine it where this Court is disabled, because of a four-four split from hearing it.

The second principle though —

William H. Rehnquist:

Well, Mr. Meltsner, do you feel —

Warren E. Burger:

We aren’t disabled from hearing it.

We have —

Michael Meltsner:

From deciding it, Mr. Chief Justice, from deciding it.

This Court has consistently said that what a four-four affirmance is, is what a technical rule of judicial administration, it’s an action out of necessity, it’s something that the Court does because it cannot do anything else.

Byron R. White:

Well, I guess that was Chief Justice Marshall’s quite language, wasn’t it?

Michael Meltsner:

It’s close to it —

William J. Brennan, Jr.:

Yes.

Michael Meltsner:

— in the first case that the —

William J. Brennan, Jr.:

The court’s inability to decide it —

Michael Meltsner:

Yes.

William J. Brennan, Jr.:

— that it requires the four-four affirmance.

Michael Meltsner:

Yes.

I think that —

William H. Rehnquist:

Mr. Meltsner, you feel then that the four-four affirmance in the circumstances that was here below, is a different situation than say at seven to two affirmance with an opinion on the merits.

Michael Meltsner:

On question —

William J. Brennan, Jr.:

As I said in the —

Michael Meltsner:

The question here and the Court has made its decision by a majority in that case.

I do not think —

William H. Rehnquist:

But if habeas — if habeas corpus isn’t res judicata, why should a decision on the merits by this Court foreclose a potential habeas petitioner any more than a decision of a lower court?

Michael Meltsner:

Well, I think using the label res judicata is somewhat misleading.

Even in Sanders versus the United States, the Court said, “There were some principles of finality which govern the habeas corpus jurisdiction.”

But they were to be employed by use of equitable principles.

And Sanders sets forth situation where let’s say, abuse of the writ is involved, where a federal district court can say, “No, I am not going to determine this question.”

Of course, another court has heard and decided.

Now, whether it’s called res judicata or stare decisis or a principle of finality, I don’t think there’s a District Judge inland who would re-litigate a question which was fully considered by this Court ,and decided by this Court unless they were either a change in law or new factual — material factual matter that was presented, which made the federal constitutional question a different one, in kind, from the one this Court decided.

Now, I do not believe that res judicata or any principle of finality would jurisdictionally bar a Federal District Court from considering a habeas petition in that circumstance.

But absent those circumstances, it’s plain to me that there would be no — there would be no — there will be no equity in the petition, and that it would not be heard.

Now, it’s interesting that the statute which the state here relies on heavily in light of the principle I mentioned, and also in light of the general principle that technical adjudication is used, short of the merits are not sufficient to bar federal habeas corpus.

The procedural rules emanating from the process of direct review do not bar federal habeas corpus, unless they amount to a deliberate bypass or an actual determination of federal question, the state comes to the statute.

Now there is nothing in the legislative history that suggests that Congress sought to deal with this problem, and it’s this deal in my judgment that suggests the contrary.

Warren E. Burger:

Is there an actual judgment as a result of a four to four division of the Court?

Michael Meltsner:

Yes, the judgment of the — my understanding is the judgment of the court below is affirmed in the same way that the process of direct review is ended when this Court denied cert.

Warren E. Burger:

And the language of the statute is actually adjudicated?

Michael Meltsner:

Actually adjudicated (Voice Overlap) —

Warren E. Burger:

And how do — if there’s an actual judgment, isn’t it actually adjudicated?

Michael Meltsner:

No, I think what is clearly intended is that there is a decision on the merits of the question.

And the statute would make little sense if that language was not read that way, because in a statute after stating that an actual adjudication will bar subsequent relief by habeas corpus, the statute goes on to define that situation where a new material of fact has been alleged, and it was not avoided in the past because of lack of due diligence, and describes that in that situation federal habeas corpus will, —

Warren E. Burger:

What if the statute just said a judgment instead of actually adjudicated?

Michael Meltsner:

If it said a judgment, we would have it at least, as far as the statute is concerned, we’d have a somewhat different case, because there’s no explanation for the use of the word actual in this statute, unless Congress meant something more than technical affirmance of the sort we’re dealing with here.

Now Congress has passed in 2109 of the Judicial Code, a statute which expressly equates the lack of a forum by this Court with a four-four affirmance.

There is nothing whatsoever in the legislative history of the statute to suggest that Congress sought to change its understanding of what a four-four affirmance meant.

William H. Rehnquist:

Couldn’t it have been suggesting perhaps that a denial of certiorari was not an actual adjudication?

Michael Meltsner:

I think that’s —

William H. Rehnquist:

One that —

Michael Meltsner:

— clearly what the draftsmen of the statute had in mind.

William J. Brennan, Jr.:

Well actually, there is — there is some legislative history supporting that Mr. Meltsner.(Voice Overlap)

Michael Meltsner:

Yes, of course.

William J. Brennan, Jr.:

And yes, you know.

Michael Meltsner:

Of course there is.

And a denial of certiorari as I’ve indicated has no precedential value.

It ends the process of direct review, and it does not bar a subsequent habeas corpus jurisdiction this time.

And I think the functional effect of a four-four affirmance is and ought to be the same.

Additionally, the legislative history can be as it is, suggests that the problem that the Congress was concerned with was abuse of the writ, was re-litigation of it — of questions that had actually been decided.

There’s nothing of that sort here.

Cases arising at a four-four affirmances are hardly flooding the federal courts.

And additionally, I’d simply want to point out that there’s nothing in the legislative history that shows an intent to modify the interests of justice standard which has long been attached to habeas corpus jurisdiction, and the District Judge in this very case deciding why would this determine the due process issue, indicated that it was in the interest of justice to do so.

In other words, both the language, the policy, and the legislative history of this statute failed to suggest that Congress had any intention to change what had generally been understood to be the meaning of a four-four affirmance, a technical sort of response which is simply a way of disposing of the case that this Court could not decide.

Warren E. Burger:

You would say then that it falls in the same category as a petition dismissed as improvidently granted?

Michael Meltsner:

Well, I think by definite — that question has long troubled me Mr. Chief Justice —

Warren E. Burger:

We’ll resume at that point in the morning Mr. Meltsner.

Michael Meltsner:

Thank you.