Neil v. Biggers, No. 71-586

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation409 U.S. 188,34 L.Ed.2d 401,93 S.Ct. 375
PartiesWilliam S. NEIL, Warden, v. Archie Nathaniel BIGGERS
Docket NumberNo. 71-586
Decision Date06 December 1972

409 U.S. 188
93 S.Ct. 375
34 L.Ed.2d 401
William S. NEIL, Warden,

v.

Archie Nathaniel BIGGERS.

No. 71-586.
Argued Oct. 18 and 19, 1972.
Decided Dec. 6, 1972.

Syllabus

Respondent was convicted of rape on evidence that consisted in part of testimony 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 him 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, 88 S.Ct. 979, 19 L.Ed.2d 1267. 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. Held:

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.

Page 189

Bart C. Durham III, Nashville, Tenn., for petitioner.

Michael Meltsner, New York City, for respondent.

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, 88 S.Ct. 979, 19 L.Ed.2d 1267 (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. 6 Cir., 448 F.2d 91 (1971). We granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus, and, if not whether the identification procedure violated due process. 405 U.S. 954, 92 S.Ct. 1167, 31 L.Ed.2d 230 (1972).

I

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, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924); Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837

Page 191

(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, 265 U.S., at 231, 44 S.Ct., at 521.

In 1948, Congress codified a version of the Salinger rule in 28 U.S.C. § 2244. As redesigned 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 di-

Page 192

vision, The Antelope, 10 Wheat. 66, 6 L.Ed. 268 (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 United States, 11 Wheat. 59, 78, 6 L.Ed. 419 (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, 19 L.Ed. 154 (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, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708 (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

Page 193

II

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 corpus hearing regarding the rape and the identification. The victim testified at trial that on the evening of January 22, 1965, a youth with a butcher knife grabbed her in the doorway to her kitchen:

'A. (H)e grabbed me from behind, and grappled—twisted me on the floor. Threw me down on the floor.

'Q. And there was no light in that kitchen?

Page 194

'A. Not in the kitchen.

'Q. So you couldn't have seen him then?

'A. Yet, I could see him, when I looked up in his face.

'Q. In the dark?

'A. He was right in the doorway—it was enough light from the bedroom shining through. Yes, I could see who he was.

'Q. You could see? No light? And you could see him and know him then?

'A. Yes.' Tr. of Rec. in No. 237, O.T.1967, pp. 33—34.

When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to 'tell her (the daughter) to shut up, or I'll kill you both.' She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. She testified that 'the moon was shining brightly, full moon.' After the rape, the assailant ran off, and she returned home, the whole incident having taken between 15 minutes and half an hour.

She then gave the police what the Federal District Court characterized as 'only a very general description,' describing him as 'being fat and flabby with smooth skin, bushy hair and a youthful voice.' Additionally, though not mentioned by the District Court, she testified at the habeas corpus hearing that she had described her assailant as being between 16 and 18 years old and between five feet ten inches and six feet, tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion. This testimony...

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7531 practice notes
  • U.S. v. Nersesian, Nos. 600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1987
    ...in our view, this factor is outweighed by the other factors that support the reliability of the identification. See Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972). Moreover, other circumstantial evidence in the case points to the reliability of Audinot's identi......
  • Young v. Conway, No. 07–CV–6047(VEB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • January 27, 2011
    ...that his line-up was illegal, not suggestive, therefore, he is under the Wade standards and not the standard set forth in Neil v. Biggers, 409 U.S. 188 [93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ]....” Id. at 16. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the S......
  • Ellison v. Sachs, Civ. A. No. M-83-4455.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 23, 1984
    ...the `totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), quoted in Poland, 659 F.2d at 986. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243......
  • Thomas v. Warren, No. CIV. 04-CV-40196-FL.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 2, 2005
    ...of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court listed five factors that should be considered when evaluating reliability: (1) the wit......
  • Request a trial to view additional results
7523 cases
  • U.S. v. Nersesian, Nos. 600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1987
    ...in our view, this factor is outweighed by the other factors that support the reliability of the identification. See Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972). Moreover, other circumstantial evidence in the case points to the reliability of Audinot's identi......
  • Young v. Conway, No. 07–CV–6047(VEB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • January 27, 2011
    ...that his line-up was illegal, not suggestive, therefore, he is under the Wade standards and not the standard set forth in Neil v. Biggers, 409 U.S. 188 [93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ]....” Id. at 16. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the S......
  • Ellison v. Sachs, Civ. A. No. M-83-4455.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 23, 1984
    ...the `totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), quoted in Poland, 659 F.2d at 986. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243......
  • Thomas v. Warren, No. CIV. 04-CV-40196-FL.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 2, 2005
    ...of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court listed five factors that should be considered when evaluating reliability: (1) the wit......
  • Request a trial to view additional results
4 books & journal articles
  • Who could it be now? Challenging the reliability of first time in-court identifications after State v. Henderson and State v. Lawson.
    • United States
    • Journal of Criminal Law and Criminology Vol. 105 Nbr. 4, September 2015
    • December 22, 2015
    ...code, but nevertheless adopted the due process analysis set forth in Manson v. Brathwaite, 432 U.S. 98 (1977), and Neil v. Biggers, 409 U.S. 188 (1972). Classen, 590 P.2d at 1199; see also discussion of MansonlBiggers test in Part (23) Lawson, 291 P.3d at 697 ("[T]he state, as the proponent......
  • THE REMAND POWER AND THE SUPREME COURT'S ROLE.
    • United States
    • Notre Dame Law Review Vol. 96 Nbr. 1, November 2020
    • November 1, 2020
    ...according to law). (397) See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 376-77 (1982). (398) See, e.g., Neil v. Biggers, 409 U.S. 188, 191-92 (399) Stutson v. United States, 516 U.S. 193, 197 (1996) (per curiam) (quotation marks and alteration omitted). (400) Cf. Adam Liptak, C......
  • Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony
    • United States
    • Journal of Contemporary Criminal Justice Nbr. 27-2, May 2011
    • May 1, 2011
    ...on juror ability to evaluate eyewitness testimony. Law and Human Behavior, 33, 225-236. doi:10.1007/s10979-008-9134-zNeil v. Biggers, 409 U.S. 188 (1972).Neubauer, D. W., & Fradella, H. F. (2010). America’s courts and the criminal justice system (10th ed.). Belmont, CA: Wadsworth/Cengage.O’......
  • The Constraint of Law
    • United States
    • American Politics Research Nbr. 35-5, September 2007
    • September 1, 2007
    ...Marshall: A reappraisal (pp. 168-185). Ithaca, NY: CornellUniversity Press.Benesh, Spaeth / Supreme Court Dissensus 767 Neil v. Biggers, 409 U.S. 188 (1972).Posner, R. A. (1993). What do judges and justices maximize? (The same thing everyone elsedoes). Supreme Court Economic Review,3, 1-41.......

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