409 U.S. 188 (1972), 71-586, Neil v. Biggers

Docket Nº:No. 71-586
Citation:409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401
Party Name:Neil v. Biggers
Case Date:December 06, 1972
Court:United States Supreme Court

Page 188

409 U.S. 188 (1972)

93 S.Ct. 375, 34 L.Ed.2d 401




No. 71-586

United States Supreme Court

Dec. 6, 1972

Argued October 18-19, 1972



Respondent was convicted of rape on evidence that consisted in part of testimony [93 S.Ct. 377] concerning the victim's visual and voice identification of respondent at a station-house showup that occurred seven months after the rape. The victim, who had been in the presence of her assailant a considerable time and had directly observed hm indoors and under a full moon outdoors, testified that she had "no doubt" that respondent was her assailant. She had previously given the police a description of her assailant, which was confirmed by a police officer. Before the showup where she identified respondent, the victim had made no identification of others who were presented at previous showups, lineups, or through photographs. The police asserted that they used the showup technique because they had difficulty in finding for a lineup other individuals generally fitting respondent's description as given by the victim. The Tennessee Supreme Court's affirmance of the conviction was affirmed here by an equally divided Court. 390 U.S. 404. Respondent then brought a habeas corpus action in District Court. After rejecting the petitioner's contention that this Court's affirmance constituted an actual adjudication within the meaning of 28 U.S.C. § 2244(c) and thus barred further review of the showup identification in a federal habeas corpus proceeding, the District Court, noting that a lineup is relatively more reliable than a showup, held that the confrontation here was so suggestive as to violate due process. The Court of Appeals affirmed.


1. This Court's equally divided affirmance of respondent's state court conviction does not, under 28 U.S.C. § 2244(c), bar further federal relief by habeas corpus, since such an affirmance merely ends the process of direct review, but settles no issue of law. Pp. 190-192.

2. While the station-house identification may have been suggestive, under the totality of the circumstances, the victim's identification of respondent was reliable and was properly allowed to go to the jury. Pp. 196-201.

448 F.2d 91, affirmed in part, reversed in part, and remanded.

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POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS and STEWART, JJ., joined, post, p. 201. MARSHALL, J., took no part in the consideration or decision of the case.

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years' imprisonment. The State's evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967). On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Biggers v. Tennessee, 390 U.S. 404 (1968) (MARSHALL, J., not participating). Respondent then brought a federal habeas corpus action raising several claims. In reply,

Page 190

petitioner contended that the claims were barred by 28 U.S.C. § 2244(c), which provides in pertinent part:

In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein. . . .

The District Court held that the claims were not barred, and, after a hearing, held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. 448 F.2d 91 (1971). We granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent [93 S.Ct. 378] consideration on habeas corpus, and, if not, whether the identification procedure violated due process. 405 U.S. 954 (1972).


The intended scope of the phrase "actually adjudicated by the Supreme Court" must be determined by reference to the peculiarities of federal court jurisdiction and the context in which § 2244(c) was enacted. Jurisdiction to hear state prisoner claims on habeas corpus was first expressly conferred on the federal courts by the Judiciary Act of 1867, c. 28, 14 Stat. 385. Thereafter, decisions of this Court established not only that res judicata was inapplicable, e.g., Salinger v. Loisel, 265 U.S. 224, 230 (1924); Fay v. Noia, 372 U.S. 391, 423

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(1963), but also that federal courts were obliged in appropriate cases to redetermine issues of fact and federal law. By the same token, the Court developed a number of limiting principles to restrain open-ended relitigation, among them that a successive habeas corpus application raising grounds rejected in a previous application might be denied without reaching the merits. Salinger v. Loisel, supra, at 231.

In 1948, Congress codified a version of the Salinger rule in 28 U.S.C. § 2244. As redesignated and amended in 1966, § 2244(b) shields against senseless repetition of claims by state prisoners without endangering the principle that each is entitled, other limitations aside, to a redetermination of his federal claims by a federal court on habeas corpus. With this in mind, the purpose of § 2244(c), also enacted in 1966, becomes clear. This subsection embodies a recognition that if this Court has "actually adjudicated" a claim on direct appeal or certiorari, a state prisoner has had the federal redetermination to which he is entitled. A subsequent application for habeas corpus raising the same claims would serve no valid purpose and would add unnecessarily to an already overburdened system of criminal justice.1

In this light, we review our cases explicating the disposition "affirmed by an equally divided Court." On what was apparently the first occasion of an equal division,

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The Antelope, 10 Wheat. 66 (1825), the Court simply affirmed on the point of division without much discussion. Id. at 126-127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have been argued cannot be settled, but the judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of the United States, 11 Wheat. 59, 78 (1826). As was later elaborated, in such cases, it is the appellant or petitioner who asks the Court to overturn a lower court's decree.

If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below therefore stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance, but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed.

Durant v. Essex Co., 7 Wall. 107, 112 (1869). Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264 (1960). We decline to construe § 2244(c)'s bar as extending to claims on which the judgment of a state court stands because of the absence of a majority position in this Court, and accordingly conclude that the courts below properly reached the merits.2

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We proceed, then, to consider respondent's due process claim.3 As the claim turns upon the facts, we must first review the relevant testimony at the jury trial and at the habeas...

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