United States ex rel. Thomas v. State of New Jersey, 72-1361.

• Decision Date: 23 January 1973
• Docket Number: No. 72-1361.,72-1361.
• Citation: 472 F.2d 735
• Parties: UNITED STATES of America ex rel. Clay THOMAS v. STATE OF NEW JERSEY et al., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

472 F.2d 735 (1973)

UNITED STATES of America ex rel. Clay THOMAS v. STATE OF NEW JERSEY et al., Appellants.

No. 72-1361.

United States Court of Appeals, Third Circuit.

Argued December 4, 1972.

Decided January 23, 1973.

George F. Kugler, Jr., Atty. Gen., Alfred J. Luciani, Deputy Atty. Gen., East Orange, N. J., for appellants.

Thomas E. Bracken, Office of Public Defender, Morristown, N. J., Stanley C. Van Ness, Office of Public Defender, Trenton, N. J., for appellee.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal by the State of New Jersey from an order granting a petition for a writ of habeas corpus. The basic order appealed from provides:

"ORDERED that a writ of habeas corpus shall issue.

Further ORDERED that pending appeal, if any is taken by the State, or pending retrial, the Passaic County Court entertain an application by petitioner for bail to be fixed by the State Court in such amount and such form as may be deemed reasonable.

Further ORDERED that in the event an appeal is not taken by the State and the indictment is not moved for retrial within 60 days of the date hereof, petitioner shall be released from all further custody pursuant to the indictment."

Upon the entry of this order, Thomas, the petitioner, applied to the Passaic County Court to be released on bail. That court declined to entertain such an application. Thomas returned to the district court, which then amended the basic order to provide that he should be released upon posting his own personal unsecured bond in the amount of $25,000 with the Passaic County Court. It directed that the Clerk of the Passaic County Court accept such bond, and that upon its posting, Thomas be released from further custody pending disposition of the instant appeal.

The state's appeal urges.

(1) that the district court\'s decision that a writ of habeas corpus should issue was error, and

(2) that the district court was without power:

(a) to order a habeas corpus petitioner\'s release from state custody pending appeal, or

(b) to direct that the Passaic County Court fix the amount of bail or accept a bond in an amount fixed by the district court.

The Grant of Habeas Corpus

The district court's decision that the writ should issue was made, on the basis of the state court record without an evidentiary hearing, on the ground that identification evidence used at the trial violated due process. Thomas urged as an additional ground for granting the writ that the state trial court had coerced a verdict by use of an Allen charge. The district court did not regard this charge as an error of constitutional dimensions. But the court did point out that the necessity for the charge, i. e. the fact that the jury was unable to agree, tended to show that the identification errors could not, under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), be regarded as harmless. Having examined the transcript of the state court trial, we affirm the order granting the writ.

The indictment on which Thomas was tried grew out of the robbery on March 22, 1968, by two Negro males of a real estate office conducted by Edward Cosmi. His father, John Cosmi, was also in the office that evening. The district court held that due process violations occurred in the admission into evidence of testimony by John Cosmi (1) as to a pre-trial photographic identification of Thomas and (2) as to an in-court identification of Thomas.

The state's basic contention is that the ruling of the state trial judge admitting evidence of the challenged pre-trial photographic identification by John Cosmi was a determination of a factual issue within the meaning of 28 U.S.C. § 2254(d), and hence presumptively correct unless one of the eight exceptions set forth in § 2254(d) applies. But the determination that evidence of the challenged pre-trial photographic identification was admissible was at best a ruling on a mixed question of law and fact. As the Supreme Court observed in Townsend v. Sain, 372 U.S. 293, 309 n.6, 83 S.Ct. 745, 755, 9 L.Ed.2d 770 (1963):

"By `issues of fact\' we mean to refer to what are termed basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators. . . .\' Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 97 L.Ed. 469 (opinion of Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense."

Whether a pre-trial identification has been conducted in an impermissibly suggestive manner, and, hence, is inadmissible is, to be sure, in one sense a question of fact. But it is a question to be determined by applying to a given collection of historical facts a defined legal standard. That defined legal standard is, moreover, a federal standard. Review by a federal habeas corpus court of a determination reflecting the application of a federal legal standard to historical facts is not barred by 28 U.S.C. § 2254(d). The most common instance of federal review of such mixed questions of historical fact and legal standard is federal review of the voluntariness of confessions. Perhaps the classic statement of the rule appears in Watts v. Indiana, 338 U.S. 49, 50, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (1949):

"On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple. But `issue of fact\' is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court\'s adjudication."

See also Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). Each of these cases, like Watts v. Indiana, supra, arose under the Supreme Court's certiorari jurisdiction to review final state court action, and thus, technically, none is a construction of 28 U.S.C. § 2254(d). But Townsend v. Sain, supra, makes clear that a habeas corpus court must observe the same mixed question of fact and law distinction as does the Supreme Court on certiorari from a state court. And § 2254(d) is no more than a codification of the standards announced by the Court in that case.¹ The Court implicitly recognized as much when, in Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), a habeas corpus case, it made its own independent determination that a confession was voluntary, and in Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), another habeas corpus case in which it independently reviewed the state court record and concluded that the California courts ". . . gave full consideration to the issue of voluntariness of the respondent's statement and that they applied correct standards of constitutional law in upholding its admission in evidence." 400 U.S. at 454, 91 S.Ct. at 490.² Indeed, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which for present purposes is most closely in point, is a habeas corpus case in which, after the 1966 amendments to 28 U.S.C. § 2254, the Court, acting on the basis of the state court record, made its own determination of a mixed question of law and fact—whether the pretrial identification procedure employed was so impermissibly suggestive as to bar testimony at the trial with respect to it. The district court here did the same, though it reached an opposite conclusion on the merits. Stovall v. Denno, supra, makes clear that jurisdiction to do so is not eliminated by 28 U.S.C. § 2254(d).³

A somewhat different issue is presented with respect to the district court's ruling that the admission of John Cosmi's in-court identification testimony was a due process violation. Assuming a pre-trial identification procedure so impermissibly suggestive as to violate due process, the witness who has been subjected to such a procedure may not make an in-court identification unless the state establishes by clear and convincing evidence that the in-court identification has an origin independent of the illegal pre-trial identification procedure. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U. S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Zeiler, 447 F. 2d 993 (3rd Cir. 1971) (Zeiler II).⁴ It may be argued that since the question of "taint" of the in-court identification will often involve credibility judgments, the decision of that issue is more closely a pure question of fact than a mixed question of fact and law. However, our Zeiler II opinion, inferentially at least, treats the issue as one calling for the application of federal legal standards to historical facts. We do not in this case reach the application of § 2254(d) to the "taint" issue, however, for here the state concedes:

"The State submits that the trial court never reached the issue of taint. Rather, it considered only whether the photographic identification procedure was so unnecessarily suggestive to the identifying witness as to give rise to a very substantial likelihood of misidentification. The trial court found that the procedure did not possess that capacity, and therefore permitted the introduction of testimony relating to it. . . . Once the court determined

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