Mancusi v. Stubbs 8212 237

Decision Date26 June 1972
Docket NumberNo. 71,71
Citation92 S.Ct. 2308,33 L.Ed.2d 293,408 U.S. 204
PartiesVincent R. MANCUSI, Correctional Superintendent, Petitioner, v. William C. STUBBS. —237
CourtU.S. Supreme Court

New York State sentenced respondent as a second offender, based on his 1964 felony conviction in Tennessee. Respondent's petition for federal habeas corpus, denied by the District Court, was granted by the Court of Appeals, which concluded that the Tennessee conviction violated his Sixth and Fourteenth Amendment right to confront witnesses and thus was not available as the predicate for a 'second offender' stiffer punishment. The State then resentenced respondent to the same sentence, based upon still another conviction in Texas. Held:

1. New York State's resentencing of respondent did not moot the instant case since the respondent's appeal involving the validity of the Texas conviction is still in the New York state courts, and therefore New York State has a present interest in the availability of the Tennessee conviction as a predicate for the stiffer punishment. Pp. 205—207.

2. Upon discovering that a State's witness had removed himself permanently to a foreign country, the State of Tennessee was powerless to compel his attendance at respondent's second trial, either through its own process or through established procedures depending upon the voluntary assistance of another government; the resultant predicate of unavailability was sufficiently strong not to warrant a federal habeas corpus court's upsetting the State's determination that the witness was not available. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, distinguished. Pp. 207—213.

3. Where a State's witness is bona fide unavailable, the requirements of the Confrontation Clause are met when prior-recorded testimony of the witness is admitted, as occurred in the 1964 trial, if that prior testimony bears 'indicia of reliability' that would afford 'the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213. Pp. 213—216.

442 F.2d 561, reversed.

Maria L. Marcus, New York City, for petitioner.

Bruce K. Carpenter, Buffalo, N.Y., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Respondent Stubbs was convicted of a felony in a New York State court and sentenced as a second offender under the laws of that State by reason of a prior Tennessee murder conviction obtained in 1964. He thereafter sought federal habeas corpus, claiming that the Tennessee conviction was had in violation of his Sixth and Fourteenth Amendment right to confront witnesses against him, and thus could not be used by New York as the predicate for a stiffer punishment. The District Court denied habeas corpus, but the Court of Appeals reversed, 442 F.2d 561 (CA2 1971). We granted certiorari, 404 U.S. 1014, 92 S.Ct. 671, 30 L.Ed.2d 661 and reverse for the reasons hereinafter stated.


Prior to our consideration of the merits it is necessary to deal with a suggestion that because petitioner did not seek a stay of the mandate of the Court of Appeals, but rather obeyed it and resentenced Stubbs, this case is therefore moot. The parties agreed at oral argument that Stubbs upon resentencing in New York had received the same sentence, based upon still another conviction in Texas. However, he was appealing from that sentence on grounds that the Texas conviction was constitutionally infirm, and that appeal had not run its course even through the state courts.

Until it can be said with certainty that the New York courts may validly resentence respondent to the same term as they imposed prior to the decision of the Court of Appeals now under review here, petitioner continues to have an interest in the availability of the Tennessee conviction as a support for second-offender sentencing of respondent. Petitioner's obedience to the mandate of the Court of Appeals and the judgment of the District Court does not moot this case.1 In Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 68 S.Ct. 630, 92 L.Ed. 792 (1948), the union appealed from an injunction issued by the United States District Court on the ground that it had been issued in violation of the provisions of the Norris-LaGuardia Act. Dealing with a 'preliminary claim' of mootness in that case, the Court said:

'The claim of mootness is also based on an affidavit stating that after dismissal of the appeal by the Court of Appeals, the union lifted its boycott. Since the record does not show that a stay of the injunction was granted pending action in this Court, we must assume that the union's action was merely obedience to the judgment now here for review. We therefore turn to the merits.' 333 U.S., at 442, 68 S.Ct., at 633.

Much earlier the Court had stated a similar view of mootness in these circumstances:

'There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has mrely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal.' Dakota County v. Glidden, 113 U.S., 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885).

Under these authorities the case is not moot, and we turn to the merits.


In July 1954, respondent was convicted in the Tennessee trial court of murder in the first degree, assault with intent to murder, and two counts of kidnaping. The jury impaneled for that trial could have concluded from the evidence presented to it that respondent, a few days after his release from a Texas penitentiary in June 1954, kidnaped Mr. and Mrs. Alex Holm and forced them at gunpoint to accompany him in their car. Stubbs drove the car and sat in the front seat, while the Holms sat in the back seat. Mr. Holm testified that somewhere east of Blountville, Tennessee, Stubbs, without saying anything, shot him twice in the head and shot and killed Mrs. Holm. Stubbs then left the car, obtained a ride as a hitchhiker, and was ultimately arrested at a roadblock. At the time of his arrest, Stubbs explained the blood on his clothing as having resulted from his having fallen off a cliff while fishing.

Stubbs took the stand in his own defense, admitted that he had kidnaped the Holms at gunpoint, and that as he drove the Holms' car, with them in the back seat, he at intervals pointed the gun in Mrs. Holm's face. He testified that during the ride he apologized for forcing a ride; that the Holms then assured him they would let him out at Bristol, Tennessee, and would not cause him any trouble; and that he therefore laid the pistol on the front seat of the car. He also testified that near Bristol, Tennessee:

'It seems awful strange, but everything just seemed to be awful still and I remember a tree and it just seemed to come up just like that in clear focus, but in a reddish haze. I mean there was no pain or nothing. . . . I felt a sharp pain that seem to start in my head and go all the way down through me and I reached up with both hands and I heard this loud roar, bang . . . Stuff started running down my face and down my shirt and all that I could think of that he has got the gun. . . . I just went outside through the car door. . . .'

After that, Stubbs testified, 'everything went black.'

Nine years after his state court trial for murder, Stubbs sought release on federal habeas corpus from the United States District Court for the Middle District of Tennessee.

He successfully urged upon that court the contention that he had been denied the effective assistance of counsel in this 1954 trial because counsel had been appointed for him only four days before the trial took place. Stubbs v. Bomar, Civil Action No. 3585 (MD Tenn.1964). The State of Tennessee then elected to retry him, and did so in 1964. By that time Holm, who had been born in Sweden but had become a naturalized American citizen, had returned to Sweden and taken up permanent residence there. Tennessee issued a subpoena that was sent to Texas authorities in an attempt to serve Holm at his last known United States address. No service having been obtained, the State at trial called Holm's son as a witness and elicited from him the fact that his father now resided in Sweden. Over appropriate objection on constitutional grounds, the Tennessee trial judge then permitted Holm's testimony at the earlier trial to be read to the jury. Stubbs again took the stand, recited his version of the events, and was again convicted. This conviction was in due course affirmed by the Supreme Court of Tennessee. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965).

Respondent has challenged the present second-offender sentence that was imposed upon him by the New York courts on the ground that his 1964 conviction upon retrial was constitutionally infirm because he was denied his Sixth and Fourteenth Amendment right to confront the witness Holm. The Court of Appeals sustained this contention, relying on this Court's opinion in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

In Barber, a prospective witness for the prosecution in an Oklahoma felony trial was incarcerated in a federal prison in Texas. The court there said:

'We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was...

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