# United States Ex Rel. Stephen Radich v. The Criminal Court of the City of New York

> Court of Appeals for the Second Circuit · April 26, 1972 · 459 F.2d 745

URL: https://www.frixlaw.com/law-library/cases/9458135

## Case

- **Full name:** UNITED STATES Ex Rel. Stephen RADICH, Petitioner-Appellant, v. the CRIMINAL COURT OF the CITY OF NEW YORK Et Al., Respondents-Appellees
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** April 26, 1972
- **Citations:** 459 F.2d 745; 1972 U.S. App. LEXIS 9886
- **Precedential status:** Published
- **Opinion:** Dissent by Mulligan
- **Judges:** Hays, Mansfield, Mulligan
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458135

## Opinion text

MULLIGAN, Circuit Judge
(dissenting) :
Stephen Radich, the petitioner herein, is an art dealer convicted in the Criminal Court of the City of New York of casting contempt on the American flag in violation of what was then § 1425 (16) (d) of the New York Penal Law by virtue of his display of “new art” forms described in the majority opinion. From the beginning Radich has been represented by able counsel of the American Civil Liberties Union who questioned the constitutionality of the statute under which he was convicted. He was found guilty in a two-to-one decision of the Ci'iminal Court (People v. Radich, 53 Misc.2d 717 , 279 N.Y.S.2d 680 (1968)) with opinions by both the majority and dissent. The Appellate Term of the Supreme Court, First Department affirmed unanimously without opinion. (People v. Radich, 57 Misc.2d 1082 , 294 N.Y.S.2d 285 (1968)). A divided New York Court of Appeals (5-2) affirmed the conviction with majority and dissenting opinions. People v. Radich, 26 N.Y.2d 114 , 308 N.Y.S.2d 846 , 257 N.E.2d 30 (1970). The Supreme Court granted review on October 19, 1970 to consider the same constitutional issues which are now presented to the Federal District Court. (See Radich v. New York, 39 U.S.L.W. 3161 [ 400 U.S. 864 , 91 S.Ct. 99 , 27 L.Ed.2d 102 ]). On February 22, 1971 the issues were argued before the Supreme Court and on March 24, 1971 the United States Supreme Court rendered its decision:
“Per Curiam.
“The Judgment is affirmed by an equally divided Court.
“Mr. Justice Douglas took no part in the consideration or decision of this case.”
Radich v. New York, 401 U.S. 531 , 91 S.Ct. 1217 , 28 L.Ed.2d 287 . Although the Supreme Court said it affirmed the judgment of the New York Court of Appeals, the majority opinion here reaches the conclusion that the Court made no actual adjudication at all because a majority could not reach any decision on the merits and that petitioner, whose petition for rehearing was denied on May 7, 1971 ( 402 U.S. 989 , 91 S.Ct. 1646 , 29 L.Ed.2d 157 ), is now free to again urge these very issues in a habeas corpus petition in the United States District Court for the Southern District of New York. I cannot subscribe to this view.
Whatever the law before 1966, it is now evident that we are called upon to construe Title 28 U.S.C. § 2244 (c), the purpose of which was “to provide a qualified application of the doctrine of res judicata ... to proceedings on applications for habeas corpus by state prisoners.” H.R.Rep. No. 1892, 89th *752 Cong., 2d Sess. 3, 8, 13 (1966). 1 The subsection which is set forth in full in footnote 3 of the majority opinion, in essence makes a prior judgment of the Supreme Court conclusive as to all issues of fact or law in a state prisoner’s federal habeas corpus proceeding, where these issues have been actually adjudicated by the Supreme Court. 2
Our inquiry therefore is what did the Congress intend by the phrase “actually adjudicated.” The Senate Report which provides the legislative history of the subsection states: “This subsection is intended to give a conclusive presumption only to actual adjudications of federal rights by the Supreme Court, and not to give such a presumption to mere denials of writs of certiorari.” Sen.Rep. No. 1797, 89th Cong., 2d Sess., in 1966 U.S.Code, Cong. & Ad.News pp. 3663, 3664. 3 (Emphasis added)
The majority opinion takes the position that an affirmance of a state court judgment by an equally divided court has “no more legal significance for ha-beas purposes than denial of certiorari, which has never precluded subsequent collateral relief. Brown v. Allen, supra, 344 U.S. at 456, 458-459, 489-494 , 73 S. Ct. 397 (1953).” Brown v. Allen, 344 U.S. 443 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953) does not deal with or even mention affirmances by an equally divided bench but rather is concerned with mere denials of writs of certiorari. 4 Moreover, Mr. Justice Frankfurter’s reasoning in finding that a mere denial of a writ of certiorari by the Supreme Court in a state prisoner case did not bar a subsequent habeas corpus application is most illuminating. In his opinion for the court on this point he stated:
“These petitions for certiorari are rarely drawn by lawyers; some are almost unintelligible and certainly do not present a clear statement of issues necessary for our understanding, in view of the pressure of the *753 Court’s work. The certified records we have in the run of certiorari cases to assist understanding are almost unknown in this field. Indeed, the number of cases in which most of the papers necessary to prove what happened in the State proceedings are not filed is striking. Whether there has been an adjudication or simply a perfunctory denial of a claim below is rarely ascertainable. Seldom do we have enough on which to base a solid conclusion as to the adequacy of the State adjudication. Even if we are told something about a trial of the claims the applicant asserts, we almost never have a transcript of these proceedings to assist us in determining whether the trial was adequate. Equally unsatisfactory as a means of evaluating the State proceedings is the filing of opinions; in less than one-fourth of the cases is more than a perfunctory order of the State courts filed. We would have to have very different records and to alter our consideration of these cases radically if a denial could fairly be deemed to be an undisclosed decision on the merits. In a few cases the issues before the District Court had not even been raised here. In other cases, the emphasis put on the issues here differed considerably from that put on them in the District Courts. Alice could understand, but not I, how under such circumstances a district judge could assume if he is so minded, that we ‘decided’ the question now presented to him.” Brown v. Allen, supra, 344 U.S. at 493-494 , 73 S.Ct. at 439 (footnotes omitted)
None of the obfuscations and inadequacies surrounding the denial of the writ of certiorari which led Mr. Justice Frankfurter to deny them significance for habeas purposes are present here. Mr. Radich is not an illiterate inmate of a New York State prison — he hasn’t spent any time in custody since his 1968 conviction. He has always been represented by competent counsel who have clearly presented his constitutional arguments to the State courts and the United States Supreme Court. There was an ample record from the State courts with written opinions articulating clearly the majority and dissenting positions. There has been nothing peremptory or perfunctory in the disposition by the Supreme Court which heard argument on the merits and which voted on the merits. Radich even petitioned for re-argument and lost. He has had his day in the Supreme Court and more. He failed to persuade a majority of the justices that the statute was unconstitutional and therefore lost. 5
There is nothing startling in the proposition that an even vote constitutes an affirmance of the judgment appealed. This has long been held and never challenged. While a 4-4 affirmance does not become a binding precedent, the law of the case has been fixed. Thus the Supreme Court held in Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 113 , 19 L.Ed. 154 (1868) “The judgment is as conclusive and binding upon the parties as if rendered upon the concurrence of all the judges upon every question involved in the case.” In United States v. Pink, 315 U.S. 203, 216 , 62 S.Ct. 552 , 86 L.Ed. 796 (1942) Mr. Justice Douglas stated that a 4-4 affirmance is “conclusive and binding upon the parties as respects that controversy.” In Hertz v. Woodman, 218 U.S. 205 , at pages 213-214, 30 S.Ct. 621 , at page 623, 54 L.Ed. 1001 (1910) the Supreme Court said:
“Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally divided court is, as between the parties, a conclusive determination and adjudication of the mat *754 ter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.” 6 (Emphasis added)
The majority’s argument that since there was equal division there was no decision on the merits and therefore no adjudication under the statute is not only without authority but is of course petitio principii. The fact that no opinion is written is obviously unimportant. If the court had simply stated that the judgment is affirmed 5 to 3 that would constitute an adjudication by the Supreme Court. Here the court said “The judgment is affirmed by an equally divided Court.” This is an adjudication. The court said so and I believe we should take it at its word.
. It is interesting to note that the only ease in point, Biggers v. Neil, 448 F.2d 91 (6th Cir. 1971), cert. granted, 405 U.S. 954 , 92 S.Ct. 1167 , 31 L.Ed.2d 230 (1972) does not discuss or even cite in either the majority or dissenting opinions, the governing statute § 2244(c). The majority opinion is based upon pre-statutory ease law evolving before the res judicata bar enacted by Congress in 1966. It is in accord with the majority here but in view of its failure to construe the statute, I cannot find it convincing and certainly not persuasive.
. There is no question of fact here but rather legal issues of the constitutionality of § 1425(16) (a) of the Penal Law of New York under which the defendant was convicted. All of these issues were as pointed out above before the Supreme Court.
. “It is clear that ‘actually adjudicated’ questions of law include all dispositions except denials of certiorari”. Developments in the Law — Habeas Corpus, 83 Harv.L.Rev. 1038, 1152 (1970) (emphasis added and footnote omitted). See also 45 Texas L.Rev. 592 , 595 n. 27 (1967).
. It should be noted that § 2244(c) refers to a prior judgment of the Supreme Court “on an appeal or review by a writ of certiorari”. The dismissal of a writ may nonetheless have res judicata effect if the circumstances reveal that the court has dismissed on the merits, see Duncan v. Carter, 299 F.2d 179 (9th Cir.), cert. denied, 370 U.S. 952 , 82 S.Ct. 1602 , 8 L.Ed.2d 818 (1962). In that case a defendant’s criminal conviction had been affirmed by the California Supreme Court. The United States Supreme Court initially granted certiorari, but after oral argument on the merits, it dismissed the writ with a brief statement: “the totality of circumstances disclosed fails to support the substantial due process issues tendered in the petitions for certiorari. . ” Baldonado v. California, 366 U.S. 417 , 81 S.Ct. 1355 , 6 L.Ed.2d 380 (1961). The defendant then commenced a federal habeas corpus action, raising the same constitutional issues that she had placed before the Supreme Court. In affirming the district court’s refusal to grant the writ, a panel of the Ninth Circuit concluded that the Supreme Court had “actually adjudicated” these claims and hence it was bound to follow that Court’s decision. Although this case was decided prior to the enactment of § 2244 (c), were the same question to be presented today, habeas corpus relief would be barred under the present statute. Compare Miller v. Carter, 434 F.2d 824, 826 (9th Cir. 1970), cert. denied, 402 U.S. 972 , 91 S.Ct. 1658 , 29 L.Ed.2d 137 (1971).
. Fay v. Noia, 372 U.S. 391, 424 , 83 S.Ct. 822, 841 , 9 L.Ed.2d 837 (1963) relied upon by the majority requires that federal constitutional rights of personal liberty “shall not be denied without the fullest opportunity for plenary federal judicial review.” The record before us establishes in my view that the petitioner here assuredly had that opportunity.
. Mr. Justice Brennan’s statement in Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264 , 80 S.Ct. 1463 , 4 L.Ed.2d 1708 (1960) that “nothing is settled” by an equally divided court, as I read it, refers not to its lack of finality as to the parties before the court, but rather that it does not settle the law and has no precedential value. It is an adjudication ex necessitate sed ex lege.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458135. Public record. Not legal advice.