Petition for Writ of Certiorari — Neil v. Biggers

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SUPREME COURT OF THE UNITED STATES

& E, ROBERT SEAVER, CLERK

OCTOBER TERM, 1971

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WILLIAM S. NEIL, Warden,

Tennessee State Penitentiary, Nashville, Tennessee,

Petitioner,

v

ARCHIE NATHANIEL BIGGERS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

BART C. DURHAM, Ill

Assistant Attomey General

211 Supreme Court Building .

Nashville, Tennessee 37219

_ Attorney for Petitioner

Of Counsel

DAVID M. PACK

Attorney General

St. Louis Iaw Printing Co., Inc., 411-15 N. Eightn St. 68101 314-281-4477 y

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TABLE OF CONTENTS

Page

Opinions below ...........ceee eee ee ee teeeeeeeeeees 1

Jamba 2. cece ccc decsnccccccvccccvssesess 2

Questions Presented ...........eeeeeeereeeeeeeeees 2

Constitutional, Statutory and Rules Provisions In-

WO, no 65d waive esc sbervhusnssecaesree sr wesus 2

Statement of the Case ............cceeeeeeeccccees 5

Reasons for Granting the Writ:

1. A 44 affirmance by this Court of a State’s high-

est court is res judicata as to the same issue be-

tween the same parties in a future habeas corpus

Ce err rrr rer ee rer 6

2. The resolution on the merits of the alleged un-

constitutional identification is inconsistent with

previous decisions of this Court ............... 9

on tn ener eT ere ree es te 9

INDEX TO APPENDICES

Appendix

A. Biggers v. Neil, Warden, No. 20,540 (6th Cir.

1971) (opimion) ........ccececcecsccccccccecs A-1

B. Biggers v. Neil, Warden, Civil No. 5120 (M. D.

Tenn., May 4, 1970) (Order) ...........--++-- A-39

C. Biggers v. Neil, Warden, Civil No. 5120 (M. D.

Tenn., April 17, 1970) (Order) ............-.-- A-46

~ —-

D. Biggers v. Russell (Neil), Warden, Civil No. ;

5120 (M. D. Tenn., July 29, 1969) (Order) ..... A-57 ‘

E. Biggers v. Russell (Neil), Warden, Civil No. :

5120 (M. D. Tenn., May 12, 1969) (Order) ..... A-58

F. Biggers v. Tennessee, 390 U.S. 1037 (1968)

(Order denying petition to rehear) ........... A-60

G. Biggers v. Tennessee, 390 U.S. 404 (1968) ..... A6l °

H. Biggers v. Tennessee, 388 U.S. 909 (1967) ..... A-67

L Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 t

CRIT Wixdsecnnndiedcndacassicsqanvetisns sees A-68 :

TABLE OF AUTHORITIES

Cases |

Anderson v. Johnson, Warden, 390 U.S. 456 (1968).. 8,9 y

Biggers v. Tennessee, 390 U.S. 404 (1968) .......... 8

Coleman v. Alabama, 399 U.S. 1 (1970) ............ 9

Durant v. Essex Company, 74 U.S. (7 Wall) 107

| ee eer eer re Tre reer eres © fr 8 :

Etting v. United States Bank, 24 U.S. (11 Wheat.) 59 %

i. Se Paes, ere ie Ore eee rr er 8

Foster v. California, 394 U.S. 440 (1968) ............ 9

Hertz v. Woodman, 218 U.S. 205 (1909) ............ 8

Radich, Appellant v. New York, 401 U.S. 531 (1971) 8 :

Sanders v. United States, 373 U.S. 1 (1963) ........ 8

Stovall v. Denno, 388 U.S. 293 (1967) .............. 9

United States v. Pink, 315 U.S. 203 (1941) .......... 8

a —

QB U.S.C., $1254(1) ....... ce crcccccccccsaccescccs 2

QB U.SC., § 2241 2... creer cece ccc rece nccccevccces 3

GB UGG, $ BBM 2. nc cccsccccccccccccrcverseccece 3, 6

PB UBC., $2408 ....crccccccccccccccveccevecscccs 4,6

Constitution of the United States:

‘Fifth Amendment ..............eeeeeeeeeeeeeees 2

Fourteenth Amendment ............ccceeeeeeceee 2

Supreme Court Rules

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"SUPREME COURT OF THE UNITED STATES

' OCTOBER TERM, 1971

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WILLIAM S. NEIL, Warden,

Tennessee State Penitentiary, Nashville, Tennessee,

Petitioner,

Y v.

: ARCHIE NATHANIEL BIGGERS,

4 Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

The petitioner William S. Neil, Warden, Tennessee

State Penitentiary, respectfully prays that a writ of cer-

) tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit

entered in this proceeding on August 18, 1971.

OPINIONS BELOW

' Mr. Biggers’ rape conviction was affirmed by the Ten-

‘ nessee Supreme Court, 219 Tenn. 553, 411 S.W.2d 696

(1967)(App. I). This Court granted certiorari, 388 U.S.

909 (1967) (App. H), affirmed the judgment below by an

equally divided vote, 390 U.S. 404 (1968) (App. G), and

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denied a petition to rehear. 390 U.S. 1037 (1968) (App. |

F). The United States District Court for the Middle Dis-

trict of Tennessee granted a petition for writ of habeas

corpus in unreported orders (Apps. B-E) and the Sixth

Circuit affirmed in an opinion not yet reported (App. A).

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on August 18, 1971, and this petition

for certiorari is timely filed within ninety days of that

date. This Court’s jurisdiction is invoked under 28

US.C., § 1254(1). i

QUESTIONS PRESENTED

1. What effect did this Court’s equally divided affirm-

ance of a state conviction after plenary consideration

have upon subsequent District Court reconsideration, by

collateral review in federal habeas corpus, of what Pe-

titioner contends to be the identical issue presented to this

Court?

2. Was Respondent denied a fair trial as a result of the

use of identification evidence allegedly the by-product of

an unconstitutional procedure? ,

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CONSTITUTIONAL, STATUTORY AND RULES

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in pertinent part:

‘*No person shall . . . be deprived of life, liberty, or

property, without due process of law...’’

The Fourteenth Amendment to the Constitution of the ;

United States provides in pertinent part: ‘

‘*No state shall make or enforce any law which ;

shall abridge the privileges or immunities of citizens

—3—

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due proc-

ess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”’

Habeas corpus is codified in Title 28, United States

Code, which provides in pertinent part:

§ 2241. Power to grant writ

‘‘(a) Writs of habeas corpus may be granted by

the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respéctive

jurisdictions...

‘¢(¢) The writ of habeas corpus shall not extend

to a prisoner unless—

‘¢(3) He is in custody in violation of the Constitu-

. tion or laws or treaties of the United States...’

‘8 9244. Finality of Determination

(c) In a habeas corpus proceeding brought in be-

half 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 as-

serted denial of a Federal right which constitutes

ground for discharge in a habeas corpus proceeding,

actually adjudicated by the Supreme Court therein,

unless the applicant for the writ of habeas corpus

shall plead and the court shall find the existence of

a material and controlling fact which did not appear

in the record of the proceeding in the Supreme Court

and the court shall further find that the applicant

for the writ of habeas corpus could not have caused

such fact to appear in such record by the exercise of

‘reasonable diligence.”’

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Title 28, United States Code, further provides:

“*§ 2403. Intervention by United States;

constitutional question

In any action, suit or proceeding in a court of the

~ United States to which the United Stas or any

agency, officer or. employee thereof is not a party,

wherein the constitutionality of any Act of Congress

affecting the public interest is drawn in question, the

court shall certify such fact to the Attorney General,

and shall permit the United States to intervene for

presentation of evidence, if evidence is otherwise ad-

missible in. the case, and for argument on the question

of constitutionality. The United States shall, subject

to the applicable provisions of law, have all the rights

of a party and be subject to all liabilities of a party

as to court costs to the extent necessary for a proper

presentation of the facts and law relating to the ques-

tion of constitutionality.’’

The 1954 rules of this Court were in effect at the time

of the certiorari grant (June 12, 1967). Rule 23, The Pe-

tition for Certiorari, remained unchanged in pertinent part

by the 1967 amended rules, and was as follows:

“‘1. The petition for writ of certiorari shall contain

in the order here indicated—

‘*(c) The questions presented for review, expressed

in the terms and circumstances of the case but without

unnecessary detail. The statement of a question pre-

sented will be deemed to include every subsidiary

question fairly comprised therein. Only the questions

set forth in the petition or fairly comprised therein

will be considered by the court.”

Bule 33

**(2) (b) In any proceeding in whatever court

arising wherein the constitutionality of any Act of

|

aed

Congress affecting the public interest is drawn in

question and the United States or any agency, officer

or employee thereof is not a party, all initial plead-

ings, motions or papers in this court shall recite that

28 U.S.C., § 2403 may be applicable and shall be served

upon the Solicitor General, Department of Justice,

Washington, D.C. 20530. In proceedings from any

court of the United States as defined by 28 US.C.,

§ 451, such initial pleading, motion or paper shall

state whether or not any such court has, pursuant to

28 U.S.C., § 2403, certified to the Attorney General the

fact that the constitutionality of such Act of Congress

was drawn in question.’’

STATEMENT OF THE CASE

The respondent Mr. Biggers was convicted of committing

a rape at knifepoint which occurred in 1965. Seven months

after the offense, while Mr. Biggers was being detained as

a suspect in another rape case, the victim identified him

as her assailant. The subsequent conviction based on that

identification was affirmed by the Tennessee Supreme

Court.. This Court granted certiorari, heard oral argu-

ment, and affirmed the conviction by a four to four vote.

Plenary consideration was given before this Court to all

aspects of the identification question.

Shortly thereafter, Mr. Biggers filed a federal habeas

corpus action. The District Court for the Middle District

of Tennessee after an evidentiary hearing found the po-

lice station identification improper and voided the convic-

tion. The Sixth Circuit affirmed, primarily because the

judges who wrote the majority opinion thought the Dis-

trict Judge decided a different question than that pre-

sented this Court on certiorari. Judge Brooks in dissent

felt that this Court had indeed decided the precise ques-

tion so as to import finality in the matter.

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REASONS FOR GRANTING THE WRIT

1, A 44 Affirmance by This Court of a State’s Highest |

Court Is Res Judicata as to the Same Issue Between the |

Same Parties in a Future Habeas Corpus Action. :

The Sixth Circuit incorrectly decided important federal

questions in conflict with a specific previous ruling by this

Court and, further, in conflict with a constitutional stat-

ute. The Court has so far departed from applicable law

as to call for an exercise of this Court’s power of super-

vision.

The District Judge ordered a new trial untainted by the

identification procedures at the police station. The Court

indicated that it would not apply 28 U.S.C. §2244(c),

supra, and if it did apply that statute, under the facts of

this case, it might be unconstitutional (App. B). The

Sixth Circuit did not mention this statute in arriving at

its decision. It is the position of Petitioner that the stat-

ute does apply and both lower courts improperly dis-

regarded it.

Pursuant to Rule 33(2)(b) of this Court, it appearing

- that 28 U.S.C. § 2403 may be applicable, three copies of

this petition have been served upon the Solicitor General,

Department of Justice, Washington, D. C. 20530. No court

below has certified that the constitutionality of 28 U.S.C.

§ 2244(c) was drawn in question.

The Court of Appeals majority opinion gave three rea-

sons why it thought the identification matter could be adju-

dicated in federal habeas corpus despite this Court’s pre-

vious affirmance. All three reasons are erroneous. They

are as follows:

_— pa

a) The District Judge did not decide the same question

as this Court did.

It is said below that different facts were considered on

federal habeas corpus than were considered by this Court

on certiorari. The majority points to language in the peti-

tion for certiorari which mentions voice identification.

Their conclusion that the certiorari grant was so very nar-

row overlooks Rule 23 of this Court which says that the

statement of a question presented is deemed to include

every subsidiary question fairly comprised therein.

Specifically, the argument is that this Court considered

only voice identification, whereas the District Court con-

sidered the totality of the circumstances. With the excep-

tion of certain language heretofore noted respecting voice

identification in the certiorari petition, the parties in their

briefs, oral arguments, petition to rehear, and again in the

court below, have always given plenary treatment to the

identification question.

The District Judge sought to avoid the adjudication by

this Court by saying that the voice identification took place

during a show-up and since he found the show-up proce-

dure unconstitutional, he need not reach the voice identifi-

cation. Yet implicit in this Court’s affirmance of the State

conviction was the fact that it was necessary for this Court

to consider the constitutionality of the former in order to

adjudicate the latter.

b) Bes judicata does not apply in the usual sense under

the facts of this case.

This was the second reason the Sixth Circuit gave in

affirming the District Judge. It is true that res judicata

does not apply to a federal habeas corpus action. Sub-

sequent decisions may be retroactive. New evidence may

pa Ses

be discovered. The Sixth Circuit was correct in stating

the general principle but applied this principle improperly.

It should have been persuasive to the lower courts that

a constitutional claim that has been thoroughly thrashed

out as was the case here has been settled. There should

be finality between these two parties at least with respect

to this issue. Sanders v. United States, 373 U.S. 1 (1963).

c) The equally divided affirmance means only that the

judgment below remained in effect.

The majority said, ‘‘As we read these decisions, the

equally divided vote of the United States Supreme Court

in Biggers v. Tennessee, 390 U.S. 404 (1968), means only

that ‘the judgment of [the Supreme Court of Tennessee]

remains in effect’,” citing Anderson v. Johnson, Warden,

390 U.S. 456 (1968). This is an oversimplification.*

This Court in the Biggers case gave plenary considera-

tion. to ‘the identification question and affirmed the

Tennessee Supreme Court. To the Petitioner, an affirm-

ance means that the judgment below is affirmed.

To allow it to be overturned the next day would render

the affirmance meaningless. Judge Brooks’ dissent cites

a number of cases which he believes hold that an equal

division affirmance means a conclusive decision on the

facts. Leading cases are Etting v. United States Bank,

24 U.S. (11 Wheat.) 59 (1826); Durant v. Essex Com-

pany, 74 U.S. (7 Wall.) 107 (1868); Herts v. Woodman,

218 U.S. 205 (1909); and United States v. Pink, 315 U.S.

203 (1941). The fact that the major authorities are so

old and the question is unsettled militates in favor ofa

anes Se

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grant of certiorari to decide this important question. The

only Twentieth Century authority the court below was

able to muster was Anderson v. Johnson, Warden, 390

U.S. 456 (1968).

2 The Resolution on the Merits of the Alleged Uncon-

stitutional Identification Is Inconsistent With Previous

Decisions of This Court. :

The identification was made in 1965 when Mr. Biggers

was shown to the victim at the police station. The lower

court incorrectly applied the totality of the circumstances

test discussed in Stovall v. Denno, 388 U.S#293 (1967),

and other lineup and show-up cases. See, e.g., Coleman

y. Alabama, 399 U.S. 1 (1970), and Foster v. California,

394 U.S. 440 (1968). Four Justices of this Court have so

thought as indicated by their vote for affirmance when

_this same issue was here before.

CONCLUSION

A writ of certiorari should issue to review the judg-

ment and opinion of the Sixth Circuit.

Respectfully submitted

BART C. DURHAM, Ii

Assistant Attorney General

211 Supreme Court Building

Nashville, Tennessee 37219

Telephone (615) 741-2091

Counsel for Petitioner

Of Counsel

DAVID M. PACK

Attorney General