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 hm 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.
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.
409 U. S.
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.
409 U. S.
196-201.
448 F.2d 91, affirmed in part, reversed in part, and
remanded.
Page 409 U. S. 189
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J.,
filed an opinion concurring in part and dissenting in part, in
which DOUGLAS and STEWART, JJ., joined,
post, p.
409 U. S. 201.
MARSHALL, J., took no part in the consideration or decision of the
case.
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
(1968) (MARSHALL, J., not participating). Respondent then brought a
federal habeas corpus action raising several claims. In reply,
Page 409 U. S. 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. 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
(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,
265 U. S. 230
(1924);
Fay v. Noia, 372 U. S. 391,
372 U. S.
423
Page 409 U. S. 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, at
265 U. S.
231.
In 1948, Congress codified a version of the
Salinger
rule in 28 U.S.C. § 2244. As redesignated 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. [
Footnote 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 division,
Page 409 U. S. 192
The Antelope,
10 Wheat. 66 (1825), the Court simply affirmed on the point of
division without much discussion.
Id. at
23 U. S.
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 the United
States, 11 Wheat. 59,
24
U. S. 78 (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,
74 U. S. 112
(1869). Nor is an affirmance by an equally divided Court entitled
to precedential weight.
Ohio ex rel. Eaton v. Price,
364 U. S. 263,
364 U. S. 264
(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.
[
Footnote 2]
Page 409 U. S. 193
II
We proceed, then, to consider respondent's due process claim.
[
Footnote 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 409 U. S. 194
"A. Not in the kitchen."
"Q. So you couldn't have seen him then?"
"A. Yes, 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 was substantially corroborated by that of a police
officer who was testifying from his notes.
On several occasions over the course of the next seven months,
she viewed suspects in her home or at the police
Page 409 U. S. 195
station, some in lineups and others in showups, and was shown
between 30 and 40 photographs. She told the police that a man
pictured in one of the photographs had features similar to those of
her assailant, but identified none of the suspects. On August 17,
the police called her to the station to view respondent, who was
being detained on another charge. In an effort to construct a
suitable lineup, the police checked the city jail and the city
juvenile home. Finding no one at either place fitting respondent's
unusual physical description, they conducted a showup instead.
The showup itself consisted of two detectives walking respondent
past the victim. At the victim's request, the police directed
respondent to say "shut up or I'll kill you." The testimony at
trial was not altogether clear as to whether the victim first
identified him and then asked that he repeat the words or made her
identification after he had spoken. [
Footnote 4] In any event, the victim testified that she
had "no doubt" about her identification. At the habeas corpus
hearing, she elaborated in response to questioning.
"A. That I have no doubt, I mean that I am sure that when I --
see, when I first laid eyes on him, I
Page 409 U. S. 196
knew that it was the individual, because his face -- well, there
was just something that I don't think I could ever forget. I
believe --"
"Q. You say when you first laid eyes on him, which time are you
referring to?"
"A. When I identified him -- when I seen him in the courthouse
when I was took up to view the suspect."
App. 127. We must decide whether, as the courts below held, this
identification and the circumstances surrounding it failed to
comport with due process requirements.
III
We have considered on four occasions the scope of due process
protection against the admission of evidence deriving from
suggestive identification procedures. In
Stovall v. Denno,
388 U. S. 293
(1967), the Court held that the defendant could claim that
"the confrontation conducted . . . was so unnecessarily
suggestive and conducive to irreparable mistaken identification
that he was denied due process of law."
Id. at
388 U. S.
301-302. This, we held, must be determined "on the
totality of the circumstances." We went on to find that, on the
facts of the case then before us, due process was not violated,
emphasizing that the critical condition of the injured witness
justified a showup in her hospital room. At trial, the witness,
whose view of the suspect at the time of the crime was brief,
testified to the out-of-court identification, as did several police
officers present in her hospital room, and also made an in-court
identification.
Subsequently, in a case where the witnesses made in-court
identifications arguably stemming from previous exposure to a
suggestive photographic array, the Court restated the governing
test:
"[W]e hold that each case must be considered on its own facts,
and that convictions based on eye
Page 409 U. S. 197
witness identification at trial following a pretrial
identification by photograph will be set aside on that ground only
if the photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification."
Simmons v. United States, 390 U.
S. 377,
390 U. S. 384
(1968). Again we found the identification procedure to be
supportable, relying both on the need for prompt utilization of
other investigative leads and on the likelihood that the
photographic identifications were reliable, the witnesses having
viewed the bank robbers for periods of up to five minutes under
good lighting conditions at the time of the robbery.
The only case to date in which this Court has found
identification procedures to be violative of due process is
Foster v. California, 394 U. S. 440,
394 U. S. 442
(1969). There, the witness failed to identify Foster the first time
he confronted him, despite a suggestive lineup. The police then
arranged a showup, at which the witness could make only a tentative
identification. Ultimately, at yet another confrontation, this time
a lineup, the witness was able to muster a definite identification.
We held all of the identifications inadmissible, observing that the
identifications were "all but inevitable" under the circumstances.
Id. at
394 U. S.
443.
In the most recent case of
Coleman v. Alabama,
399 U. S. 1 (1970),
we held admissible an in-court identification by a witness who had
a fleeting but "real good look" at his assailant in the headlights
of a passing car. The witness testified at a pretrial suppression
hearing that he identified one of the petitioners among the
participants in the lineup before the police placed the
participants in a formal line. MR. JUSTICE BRENNAN, for four
members of the Court, stated that this evidence could support a
finding that the in-court identification was
Page 409 U. S. 198
"entirely based upon observations at the time of the assault,
and not at all induced by the conduct of the lineup."
Id.
at
399 U. S. 6.
Some general guidelines emerge from these cases as to the
relationship between suggestiveness and misidentification. It is,
first of all, apparent that the primary evil to be avoided is "a
very substantial likelihood of irreparable misidentification."
Simmons v. United States, 390 U.S. at
390 U. S. 384.
While the phrase was coined as a standard for determining whether
an in-court identification would be admissible in the wake of a
suggestive out-of-court identification, with the deletion of
"irreparable," it serves equally well as a standard for the
admissibility of testimony concerning the out-of-court
identification itself. [
Footnote
5] It is the likelihood of misidentification which violates a
defendant's right to due process, and it is this which was the
basis of the exclusion of evidence in
Foster. Suggestive
confrontations are disapproved because they increase the likelihood
of misidentification, and unnecessarily suggestive ones are
condemned for the further reason that the increased chance of
misidentification is gratuitous. But as
Stovall makes
clear, the admission of evidence of a showup without more does not
violate due process.
What is less clear from our cases is whether, as intimated by
the District Court, unnecessary suggestiveness
Page 409 U. S. 199
alone requires the exclusion of evidence. [
Footnote 6] While we are inclined to agree with
the courts below that the police did not exhaust all possibilities
in seeking persons physically comparable to respondent, we do not
think that the evidence must therefore be excluded. The purpose of
a strict rule barring evidence of unnecessarily suggestive
confrontations would be to deter the police from using a less
reliable procedure where a more reliable one may be available, and
would not be based on the assumption that, in every instance, the
admission of evidence of such a confrontation offends due process.
Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408
F.2d 1230, 1251 (1968) (Leventhal, J., concurring);
cf. Gilbert
v. California, 388 U. S. 263,
388 U. S. 273
(1967);
Mapp v. Ohio, 367 U. S. 643
(1961). Such a rule would have no place in the present case, since
both the confrontation and the trial preceded
Stovall v. Denno,
supra, when we first gave notice that the suggestiveness of
confrontation procedures was anything other than a matter to be
argued to the jury.
We turn, then, to the central question, whether under the
"totality of the circumstances," the identification was reliable
even though the confrontation procedure was suggestive. As
indicated by our cases, the factors to be considered in evaluating
the likelihood of misidentification include the opportunity of the
witness to view the criminal at the time of the crime, the witness'
degree of attention, the accuracy of the witness' prior description
of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time
Page 409 U. S. 200
between the crime and the confrontation. Applying these factors,
we disagree with the District Court's conclusion.
In part, as discussed above, we think the District Court focused
unduly on the relative reliability of a lineup as opposed to a
showup, the issue on which expert testimony was taken at the
evidentiary hearing. It must be kept in mind also that the trial
was conducted before
Stovall, and that therefore the
incentive was lacking for the parties to make a record at trial of
facts corroborating or undermining the identification. The
testimony was addressed to the jury, and the jury apparently found
the identification reliable. Some of the State's testimony at the
federal evidentiary hearing may well have been self-serving in that
it too neatly fit the case law, but it surely does nothing to
undermine the state record, which itself fully corroborated the
identification.
We find that the District Court's conclusions on the critical
facts are unsupported by the record, and clearly erroneous. The
victim spent a considerable period of time with her assailant, up
to half an hour. She was with him under adequate artificial light
in her house and under a full moon outdoors, and at least twice,
once in the house and later in the woods, faced him directly and
intimately. She was no casual observer, but rather the victim of
one of the most personally humiliating of all crimes. [
Footnote 7] Her description to the
police, which included the assailant's approximate age, height,
weight, complexion, skin texture, build, and voice, might not have
satisfied Proust, but was more than ordinarily thorough. She had
"no doubt" that respondent was the person who raped her. In the
nature of the crime, there are rarely witnesses to a rape other
than the victim, who often has a limited
Page 409 U. S. 201
opportunity of observation. [
Footnote 8] The victim here, a practical nurse by
profession, had an unusual opportunity to observe and identify her
assailant. She testified at the habeas corpus hearing that there
was something about his face "I don't think I could ever forget."
App. 127.
There was, to be sure, a lapse of seven months between the rape
and the confrontation. This would be a seriously negative factor in
most cases. Here, however, the testimony is undisputed that the
victim made no previous identification at any of the showups,
lineups, or photographic showings. Her record for reliability was
thus a good one, as she had previously resisted whatever
suggestiveness inheres in a showup. Weighing all the factors, we
find no substantial likelihood of misidentification. The evidence
was properly allowed to go to the jury. [
Footnote 9]
Affirmed in part, reversed in part, and remanded.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
The legislative history adds little. The Senate Report states,
cryptically, that
"[t]his 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."
S.Rep. No. 179, 89th Cong., 2d Sess., 2 (1966). We conclude from
this only that Congress did not expressly address itself to the
effect of an affirmance by an equally divided Court. Nor is this
surprising in view of the rarity of such divided affirmances in
criminal cases.
[
Footnote 2]
We have been aided, and are confirmed in this view, by the
thoughtful opinion of Judge Mansfield in
United States ex rel.
Radich v. Criminal Ct. of City of New York, 459 F.2d 745 (CA2
1972),
pet. for cert. pending sub nom. Ross v. Radich, No.
71-1510.
[
Footnote 3]
The dissent would have us decline to address the merits because
the District Court, after an evidentiary hearing, found due process
to have been violated, and the Court of Appeals -- after reviewing
the entire record -- found that "the conclusions of fact of the
District Judge are [not] clearly erroneous." 448 F.2d 91, 95. It is
said that we should not depart from "our long-established practice
not to reverse findings of fact concurred in by two lower courts
unless shown to be clearly erroneous."
Post at
409 U. S. 202.
This rule of practice, under which the Court does not lightly
overturn the concurrent findings of fact of two lower federal
courts, is a salutary one to be followed where applicable. We think
it inapplicable here, where the dispute between the parties is not
so much over the elemental facts as over the constitutional
significance to be attached to them. Moreover, this is a habeas
corpus case in which the facts are contained primarily in the state
court record (equally available to us as to the federal courts
below) and where the evidentiary hearing in the District Court
purported to be "confined" to two specific issues which we deem not
controlling. Of the nine cases cited in the dissenting opinion in
support of the rule of practice urged upon us, eight of them
involved civil litigation in the federal system. Only one of the
cases cited,
Boulden v. Holman, 394 U.
S. 478 (1969), involved a habeas corpus review and the
Court simply held -- on the basis of "an independent study of the
entire record" -- that the conclusion reached by the District Court
and the Court of Appeals "was justified."
Id. at
394 U. S. 480,
394 U. S.
481.
[
Footnote 4]
At trial, one of the police officers present at the
identification testified explicitly that the words were spoken
after the identification. The victim testified:
"Q. What physical characteristics, if any, caused you to be able
to identify him?"
"A. First of all -- uh -- his size, -- next I could remember his
voice."
"Q. What about his voice? Describe his voice to the Jury."
"A. Well, he has the voice of an immature youth -- I call it an
immature youth. I have teen-age boys. And that was the first thing
that made me think it was the boy."
Tr. of Rec. in No. 237, O.T. 1967, p. 17. The colloquy
continued, with the victim describing the voice and other physical
characteristics. At the habeas corpus hearing, the victim and all
of the police witnesses testified that a visual identification
preceded the voice identification. App. 80, 123, 134.
[
Footnote 5]
See Clemons v. United States, 133 U.S.App.D.C. 27, 47,
408 F.2d 1230, 1250 (1968) (McGowan, J., for the court en banc),
cert. denied, 394 U.S. 964 (1969). In the present case,
there has been controversy, in our view irrelevant, over whether,
as she testified at the habeas corpus hearing, the victim actually
made an in-court identification. While we think it evident from the
many testimonial links between her out-of-court identification and
"the defendant" before her in court that the answer is "yes," we
recognize that if the testimony concerning the out-of-court
identification was inadmissible, the conviction must be
overturned.
[
Footnote 6]
The District Court stated:
"In this case, it appears to the Court that a line-up, which
both sides admit is generally more reliable than a show-up, could
have been arranged. The fact that this was not done tended
needlessly to decrease the fairness of the identification process
to which petitioner was subjected."
App. 42.
[
Footnote 7]
See United States ex rel. Phipps v. Follette, 428 F.2d
912, 91 916 (CA2) (Friendly, J.),
cert. denied, 400 U.S.
908 (1970).
[
Footnote 8]
Respondent attaches some weight to the failure of the victim's
daughter to identify him. Apart from the fact that this does not
bear directly on the reliability of her mother's identification,
the girl was only 12 years old, and had, as best we can tell, only
a very brief view of the assailant from across the room.
[
Footnote 9]
Respondent's habeas corpus petition raised a number of other
claims, including one challenging the legality of his detention at
the time he was viewed by the victim. The courts below did not
address these claims, nor do we.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE STEWART concur, concurring in part and dissenting in
part.
We granted certiorari in this case to determine whether our
affirmance by an equally divided Court of respondent's state
conviction constitutes an actual adjudication
Page 409 U. S. 202
within the meaning of 28 U.S.C. § 2244(c), and thus bars
subsequent consideration of the same issues on federal habeas
corpus. The Court holds today that such an affirmance does not bar
further federal relief, and I fully concur in that aspect of the
Court's opinion. Regrettably, however, the Court also addresses the
merits and delves into the factual background of the case to
reverse the District Court's finding, upheld by the Court of
Appeals, that, under the "totality of the circumstances," the
pre-
Stovall showup was so impermissibly suggestive as to
give rise to a substantial likelihood of misidentification. This is
an unjustified departure from our long-established practice not to
reverse findings of fact concurred in by two lower courts unless
shown to be clearly erroneous.
See, e.g., Blau v. Lehman,
368 U. S. 403,
368 U. S.
408-409 (1962);
Faulkner v. Gibbs, 338 U.
S. 267,
338 U. S. 268
(1949);
United States v. Dickinson, 331 U.
S. 745,
331 U. S. 751
(1947);
United States v. Commercial Credit Co.,
286 U. S. 63,
286 U. S. 67
(1932);
United States v. Chemical Foundation, 272 U. S.
1,
272 U. S. 14
(1926);
Baker v. Schofield, 243 U.
S. 114,
243 U. S. 118
(1917);
Towson v. Moore, 173 U. S. 17,
174 U. S. 24
(1899);
cf. Boulden v. Holman, 394 U.
S. 478,
394 U. S.
480-481 (1969).
As the Court recognizes, a pre-
Stovall identification
obtained as a result of an unnecessarily suggestive showup may
still be introduced in evidence if, under the "totality of the
circumstances," the identification retains strong indicia of
reliability. After an extensive hearing and careful review of the
state court record, however, the District Court found that, under
the circumstances of this case, there existed an intolerable risk
of misidentification. Moreover, in making this determination, the
court specifically found that "the complaining witness did not get
an opportunity to obtain a good view of the suspect during the
commission of the crime," "the show-up confrontation was not
conducted near the time of the alleged crime, but, rather, some
seven months after its commission,"
Page 409 U. S. 203
and the complaining witness was unable to give "a good physical
description of her assailant" to the police. App. 412. The Court of
Appeals, which conducted its own review of the record, upheld the
District Court's findings in their entirety. 448 F.2d 91, 95 (CA6
1971).
Although this case would seem to fall squarely within the bounds
of the "two-court" rule, the Court seems to suggest that the rule
is "inapplicable here" because
"this is a habeas corpus case in which the facts are contained
primarily in the state court record (equally available to us as to
the federal courts below). . . ."
Ante at
409 U. S. 193
n. 3. The "two-court" rule, however, rests upon more than mere
deference to the trier of fact who has a first-hand opportunity to
observe the testimony and to gauge the credibility of witnesses.
For the rule also serves as an indispensable judicial "time-saver,"
making it unnecessary for this Court to waste scarce time and
resources on minor factual questions which have already been
accorded consideration by two federal courts and whose resolution
is without significance except to the parties immediately involved.
Thus, the "two-court" rule must logically apply even where, as
here, the lower courts' findings of fact are based primarily upon
the state court record.
The Court argues further, however, that the rule is irrelevant
here because, in its view, "the dispute between the parties is not
so much over the elemental facts as over the constitutional
significance to be attached to them."
Ante at
409 U. S. 193
n. 3. I cannot agree. Even a cursory examination of the Court's
opinion reveals that its concern is not limited solely to the
proper application of legal principles, but, rather, extends to an
essentially
de novo inquiry into such "elemental facts" as
the nature of the victim's opportunity to observe the assailant and
the type of description the victim gave
Page 409 U. S. 204
the police at the time of the crime. And although we might
reasonably disagree with the lower courts' findings as to such
matters, the "two-court" rule wisely inhibits us from cavalierly
substituting our own view of the facts simply because we might
adopt a different construction of the evidence or resolve the
ambiguities differently. On the contrary, these findings are "final
here in the absence of very exceptional showing of error."
Comstock v. Group of Institutional Investors, 335 U.
S. 211,
335 U. S. 214
(1948). The record before us is simply not susceptible of such a
showing and, indeed, the petitioner does not argue otherwise. I
would therefore dismiss the writ of certiorari as improvidently
granted insofar as it relates to Question 2 of the Questions
Presented.