409 U.S. 188 (1972)
In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years’ imprisonment.1
The State’s evidence consisted in part of testimony concerning a station-house identification of respondent by the victim.2 The Tennessee Supreme Court affirmed.3 On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court.4 Respondent then brought a federal habeas corpus action raising several claims.5
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.6 The Court of Appeals affirmed.7 The Supreme Court 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.8
On the evening of January 22, 1965, a youth with a butcher knife grabbed the victim in the doorway to her kitchen.9 When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream.10 The assailant directed the victim to tell her daughter to shut up or he would kill them both.11 She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there.12 The whole incident took between 15 minutes and half an hour under a full moon.13
The victim gave the police a description of the assailant as being fat and flabby with smooth skin, bushy hair, a youthful voice, between 16 and 18 years old, between five feet ten inches and six feet tall, weighing between 180 and 200 pounds, and having a dark brown complexion.14 Over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs but identified none of the suspects.15 On August 17, the police called her to the station to view respondent, who was being detained on another charge.16 Finding no one fitting respondent’s unusual physical description, they conducted a showup instead consisting of two detectives walking respondent past the victim.17 At the victim’s request, the police directed respondent to say shut up or I’ll kill you.18 The victim testified that she had no doubt about her identification.19
At trial the victim testified that she could see the assailant because there was enough light from the bedroom shining through.20 At the habeas corpus hearing, she stated that when she first laid eyes on him at the identification, she knew it was the individual because there was something about his face she did not think she could ever forget.21
Whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus under 28 U.S.C. § 2244(c)?22
Section 2244(c) provides that a prior judgment of the Supreme Court shall be conclusive as to all issues of fact or law actually adjudicated by the Supreme Court.23 An affirmance by an equally divided Court does not constitute an actual adjudication because the Court issues no majority opinion and such affirmances carry no precedential weight.24
No. The established facts indicate that after the Tennessee Supreme Court affirmed the conviction the Supreme Court affirmed by an equally divided Court.25 Because the affirmance resulted from an equal division there was no actual adjudication of the federal claims by a majority of the Court.26 The habeas corpus action therefore was not barred and the lower federal courts properly reached the merits of the due process claim.27
An affirmance by an equally divided Court does not bar subsequent consideration of the claims on habeas corpus under 28 U.S.C. § 2244(c).28
Related opinions on this issue
Justice Brennan concurs that an affirmance by an equally divided Court does not bar further federal relief on habeas corpus.29 He agrees 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.30 Brennan notes that the purpose of section 2244(c) is to avoid unnecessary relitigation.31
He fully concurs in the holding that an equal division produces no actual adjudication because no majority opinion issues and the affirmance carries no precedential weight.32 This allows the habeas corpus proceeding to proceed to the merits of the due process claim.33
Whether the station-house identification procedure violated due process?34
Due process requires exclusion of identification evidence if under the totality of the circumstances the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.35 The factors to be considered are 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 between the crime and the confrontation.36
No. The victim spent up to half an hour with the assailant under adequate artificial light in her house and under a full moon outdoors.37 She provided a detailed description including age height weight complexion and voice.38 She expressed no doubt about the identification and had made no previous identifications despite viewing numerous suspects over seven months.39 These circumstances establish that the identification was reliable despite the suggestive showup procedure.40
The station-house identification procedure did not violate due process.41
Related opinions on this issue
Justice Brennan dissents from the decision to reach the merits of the due process claim.42 He would dismiss the writ of certiorari as improvidently granted insofar as it relates to the identification issue.43 Brennan emphasizes that the District Court after an extensive hearing found an intolerable risk of misidentification under the totality of the circumstances.44
The Court of Appeals upheld those findings in their entirety.45 He argues that the two-court rule requires deference to concurrent findings of fact by two lower federal courts absent a very exceptional showing of error.46 The rule serves as an indispensable time-saver and applies even when findings rest on the state court record.47
Brennan concludes that the Court should not substitute its own view of the elemental facts.48