O'SULLIVAN, Senior Circuit Judge.
Petitioner-appellant, Don Lee Hancock, a prisoner of the State of Tennessee, appeals from denial, without evidentiary hearing, of his petition to a United States District Judge for a writ of habeas corpus. Petitioner, in July of 1967, had been convicted of armed robbery, upon trial in the Circuit Court of Bedford County, Tennessee. At trial and on appeal to the Court of Criminal Appeals of Tennessee, appellant objected to the prosecution's use of an incourt identification of him by two witnesses. He charged that such identification was the product of an improper one-man confrontation or showup. The District Judge denied relief without an evidentiary hearing, holding that the state appellate court determination, evidenced by a written opinion, was presumed correct and that appellant had not established any of the circumstances set forth in 28 U.S.C. § 2254(d) (1)-(8) which require an evidentiary hearing. His conviction was affirmed by the Court of Criminal Appeals and his application for certiorari was denied by the Supreme Court of Tennessee on August 5, 1968. Certiorari was denied by the Supreme Court of the United States. Hancock v. Tennessee, 394 U.S. 951, 89 S.Ct. 1291, 22 L.Ed.2d 486 (1969), Mr. Justice Douglas dissenting, 394 U.S. 1008, 89 S.Ct. 1597, 22 L.Ed.2d 789.1
We affirm.
Understanding will be served by recital of pertinent portions of the state court opinion upon which the District Judge relied.
"On August 1, 1966 Scotty Brandon, twelve years of age, was working for the Tennessee Amusement Company as a ticket seller at the Highway 41 Drive-In Theatre, located just outside of Shelbyville on the highway between that city and Tullahoma. His eleven year old brother Steven was there to keep him company. The ticket booth was located near the drive-in entrance to the theatre, and was well lighted inside and out. About 9:00 o'clock that night Scotty counted his money; he had $122, put $50 in the money bag and $72 in the money box, and was standing outside the booth at the ticket window when two men approached him. Asked if they would like to see the show, one of them replied affirmatively and inquired if they could get in on foot. He informed them that they could and turned around to get the tickets. One of the men placed a small pistol against his side, told him to get inside and pushed him through the door into the ticket booth. This man then told Steven Brandon to give him the money bag, Steven did so, and the man grabbed the money box, and told the boys to stay inside, that there was a man across the street with a rifle who would shoot them if they tried to leave. The robbers left and ran up the highway toward Tullahoma.
"Scotty described the man with the gun as `just a little bit shorter than Mr. Newman (the Sheriff), and he had real long — he had long black bushy hair, and well, he weighed about 150 or 160 pounds'; that he had on blue jeans with bleached spots in them and a shirt with red, black and white checks in it; that he was about twenty or twenty-one or twenty-two years old; and that the other man had long brown bushy hair and looked to be twenty-one or twenty-two years old. Steven described the man with the gun as having long black bushy hair, wearing blue jeans that looked like they had bleached spots in them, and a checkered shirt that had blue and red in it, and said defendant's hair at trial was shorter and a lighter color than at the time of the robbery; and that he did not get a good look at the other man.
"With reference to the confrontation of these boys with the defendant at the jail in Murfreesboro, to all of which defense counsel's objections were overruled by the court, Scotty testified that eight or ten days after the robbery he and Steven and their father, along with Shelbyville Chief of Police Roy Fann and a Mr. Ogles, went to the Murfreesboro Jail `to look at a man and see if he was the one that robbed us'; that they went upstairs to the hall in front of the cells, and a trusty had the defendant come out of his cell into the hallway, after all of them had first looked at him through a little window; that he then recognized him as the man who held the gun on him and robbed him at the drive-in theatre; that `he was a little shorter than Mr. Newman, and his hair was still black and long, and he weighed about 150 or 160 pounds.' He said he did not know the defendant's name until after he had identified him, and that his father told him his name was Donald Lee Hancock. He identified the defendant in court, and said that that was the only time he had seen him between the robbery and the trial, and that `his hair is cut shorter and it's brown.' He testified that the trip to the Murfreesboro Jail was suggested to his father by Shelbyville Police Chief Roy Fann, and that `My father told me we were going over to look at some — to look at a man and see if he was the one that robbed us'; that no one told him they were going to look at Donald Hancock; that they only looked at this one man at the Murfreesboro Jail; that he was brought out into the hallway at the suggestion of the Sheriff of Rutherford County; that after he and his brother had looked at the defendant, `I said That's him.' Then, Mr. Fann asked my brother was that him, and he said, `Yes'; and that he based his incourt identification of the defendant upon his identification of him at the Murfreesboro Jail.
"Defense counsel's objection to the testimony of Steven Brandon about the identification of the defendant at the Murfreesboro Jail was also overruled. Steven testified that by pre-arrangement they were to nod their head if they recognized the man; that after the defendant was brought out in the hall he and Scotty nodded their heads to Mr. Fann, and that the defendant was then taken back to his cell; that when they got to the jail, Mr. Fann said, `We would like to see Don to see if they can identify him and look at him'; or `We would like to identify — I mean, see — We would like to see Donald Hancock'; that when he and his brother and father and the others went to the Murfreesboro Jail, they were going to see Don, and that Mr. Fann had told all of them that they were going over to Murfreesboro to see Don; that when they saw the defendant in the jail he was dressed in his undershorts; and that he did not notice any tattoo markings on the defendant. He identified the defendant in court, and said he was the same man he saw in jail in Murfreesboro.
"The defendant testified that he was not in any way involved in the robbery, and did not hear about it until he was locked up on August 10th in the Bedford County Jail; that he was transferred from the Bedford County Jail to the State Prison in Nashville on August 11th and stayed there in the hospital three weeks; that then he was returned to Shelbyville for a hearing and was then placed in jail in Murfreesboro about the 26th of August; that while in the Murfreesboro Jail the trusty came to his cell and asked him to come out in the hallway, saying that somebody wanted to see him, and that he thought it was his attorney coming there to talk to him, and that he was dressed in his undershorts and a tee shirt; that after the boys and the others looked at him he was returned to his cell. He testified with reference to the tattoos on his hands and arms; that he was alone in the hallway when the Brandon boys and the others with them looked at him; that his hair on August 1st was the same color as it was in court, sandy brown, that it might have been a little longer then than at present, that his hair was not black then and was no darker than at the time he testified.
"Of course, the core of the complaint raised by the first Assignment of Error is that the in-court identification of the defendant by the Brandon boys was based upon and tainted by their pre-trial identification while he was in jail. According to these boys, this jail identification was eight or ten days after the robbery on August 1, 1966. The defendant was arrested for armed robbery in Shelbyville, Tennessee on August 10, 1966 and was placed in the Bedford County Jail. He escaped the next day and while being recaptured he shot and killed a highway patrolman and was wounded himself. He says he was then hospitalized three weeks in the State Penitentiary at Nashville and was placed in the Murfreesboro Jail about August 26th. At any rate, he was in that jail awaiting trial upon a charge of first degree murder, for which he was tried and convicted in Marshall County, after a change of venue, on January 31, 1967. Thus, the confrontation in the jail...
