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

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.


(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?

Media for Neil v. Biggers

Audio Transcription for Oral Argument - October 19, 1972 in Neil v. Biggers

Audio Transcription for Oral Argument - October 18, 1972 in Neil v. Biggers

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?