neil biggers argued decided december respondent convicted rape evidence consisted part testimony concerning victim visual voice identification respondent showup occurred seven months rape victim presence assailant considerable time directly observed indoors full moon outdoors testified doubt respondent assailant previously given police description assailant confirmed police officer showup identified respondent victim made identification others presented previous showups lineups photographs police asserted used showup technique difficulty finding lineup individuals generally fitting respondent description given victim tennessee affirmance conviction affirmed equally divided respondent brought habeas corpus action district rejecting petitioner contention affirmance constituted actual adjudication within meaning thus barred review showup identification federal habeas corpus proceeding district noting lineup relatively reliable showup held confrontation suggestive violate due process appeals affirmed held equally divided affirmance respondent state conviction bar federal relief habeas corpus since affirmance merely ends process direct review settles issue law pp identification may suggestive totality circumstances victim identification respondent reliable properly allowed go jury pp powell delivered opinion burger white blackmun rehnquist joined brennan filed opinion concurring part dissenting part douglas stewart joined post marshall took part consideration decision case bart durham iii assistant attorney general tennessee argued cause petitioner brief david pack attorney general michael meltsner argued cause respondent brief jack greenberg anthony amsterdam avon williams alexander looby louis lefkowitz attorney general new york pro se samuel hirshowitz first assistant attorney general maria marcus assistant attorney general filed brief attorney general new york amicus curiae urging reversal shirley fingerhood richard green burt neuborne melvin wulf filed brief american civil liberties union amicus curiae urging affirmance justice powell delivered opinion jury trial tennessee respondent convicted rape sentenced years imprisonment state evidence consisted part testimony concerning identification respondent victim tennessee affirmed biggers state certiorari judgment tennessee affirmed equally divided biggers tennessee marshall participating respondent brought federal habeas corpus action raising several claims reply petitioner contended claims barred provides pertinent part habeas corpus proceeding brought behalf person custody pursuant judgment state prior judgment appeal review writ certiorari instance prisoner decision state shall conclusive issues fact law respect asserted denial federal right constitutes ground discharge habeas corpus proceeding actually adjudicated therein intended scope phrase actually adjudicated must determined reference peculiarities federal jurisdiction context enacted jurisdiction hear state prisoner claims habeas corpus first expressly conferred federal courts judiciary act stat thereafter decisions established res judicata inapplicable salinger loisel fay noia also federal courts obliged appropriate cases redetermine issues fact federal law token developed number limiting principles restrain relitigation among successive habeas corpus application raising grounds rejected previous application might denied without reaching merits salinger loisel supra congress codified version salinger rule redesignated amended shields senseless repetition claims state prisoners without endangering principle entitled limitations aside redetermination federal claims federal habeas corpus mind purpose also enacted becomes clear subsection embodies recognition actually adjudicated claim direct appeal certiorari state prisoner federal redetermination entitled subsequent application habeas corpus raising claims serve valid purpose add unnecessarily already overburdened system criminal justice light review cases explicating disposition affirmed equally divided apparently first occasion equal division antelope wheat simply affirmed point division without much discussion faced similar division next term affirmed chief justice marshall explaining principles law argued settled judgment affirmed divided opinion upon etting bank wheat later elaborated cases appellant petitioner asks overturn lower decree judges divided reversal order made judgment therefore stands full force indeed settled practice case enter judgment affirmance convenient mode expressing fact cause finally disposed conformity action proceed enforce judgment legal effect appeal writ error dismissed durant essex wall ii proceed consider respondent due process claim claim turns upon facts must first review relevant testimony jury trial habeas corpus hearing regarding rape identification victim testified trial evening january youth butcher knife grabbed doorway kitchen grabbed behind grappled twisted floor threw floor light kitchen kitchen seen yes see looked face dark right doorway enough light bedroom shining yes see see light see know yes tr rec pp gave police federal district characterized general description describing fat flabby smooth skin bushy hair youthful voice additionally though mentioned district testified habeas corpus hearing described assailant years old five feet ten inches six feet tall weighing pounds dark brown complexion testimony substantially corroborated police officer testifying notes several occasions course next seven months viewed suspects home police station lineups others showups shown photographs told police man pictured one photographs features similar assailant identified none suspects august police called station view respondent detained another charge effort construct suitable lineup police checked city jail city juvenile home finding one either place fitting respondent unusual physical description conducted showup instead showup consisted two detectives walking respondent past victim victim request police directed respondent say shut kill testimony trial altogether clear whether victim first identified asked repeat words made identification spoken event victim testified doubt identification habeas corpus hearing elaborated response questioning doubt mean sure see first laid eyes knew individual face well something think ever forget believe say first laid eyes time referring identified seen courthouse took view suspect app iii considered four occasions scope due process protection admission evidence deriving suggestive identification procedures stovall denno held defendant claim confrontation conducted unnecessarily suggestive conducive irreparable mistaken identification denied due process law held must determined totality circumstances went find facts case us due process violated emphasizing critical condition injured witness justified showup hospital room trial witness whose view suspect time crime brief testified identification several police officers present hospital room also made identification subsequently case witnesses made identifications arguably stemming previous exposure suggestive photographic array restated governing test hold case must considered facts convictions based eyewitness identification trial following pretrial identification photograph set aside ground photographic identification procedure impermissibly suggestive give rise substantial likelihood irreparable misidentification simmons case date found identification procedures violative due process foster california witness failed identify foster first time confronted despite suggestive lineup police arranged showup witness make tentative identification ultimately yet another confrontation time lineup witness able muster definite identification held identifications inadmissible observing identifications inevitable circumstances recent case coleman alabama held admissible identification witness fleeting real good look assailant headlights passing car witness testified pretrial suppression hearing identified one petitioners among participants lineup police placed participants formal line justice brennan four members stated evidence support finding identification entirely based upon observations time assault induced conduct lineup general guidelines emerge cases relationship suggestiveness misidentification first apparent primary evil avoided substantial likelihood irreparable misidentification simmons phrase coined standard determining whether identification admissible wake suggestive identification deletion irreparable serves equally well standard admissibility testimony concerning identification likelihood misidentification violates defendant right due process basis exclusion evidence foster suggestive confrontations disapproved increase likelihood misidentification unnecessarily suggestive ones condemned reason increased chance misidentification gratuitous stovall makes clear admission evidence showup without violate due process less clear cases whether intimated district unnecessary suggestiveness alone requires exclusion evidence inclined agree courts police exhaust possibilities seeking persons physically comparable respondent think evidence must therefore excluded purpose strict rule barring evidence unnecessarily suggestive confrontations deter police using less reliable procedure reliable one may available based assumption every instance admission evidence confrontation offends due process clemons app leventhal concurring cf gilbert california mapp ohio rule place present case since confrontation trial preceded stovall denno supra first gave notice suggestiveness confrontation procedures anything matter argued jury turn central question whether totality circumstances identification reliable even though confrontation procedure suggestive indicated cases factors considered evaluating likelihood misidentification include opportunity witness view criminal time crime witness degree attention accuracy witness prior description criminal level certainty demonstrated witness confrontation length time crime confrontation applying factors disagree district conclusion part discussed think district focused unduly relative reliability lineup opposed showup issue expert testimony taken evidentiary hearing must kept mind also trial conducted stovall therefore incentive lacking parties make record trial facts corroborating undermining identification testimony addressed jury jury apparently found identification reliable state testimony federal evidentiary hearing may well neatly fit case law surely nothing undermine state record fully corroborated identification find district conclusions critical facts unsupported record clearly erroneous victim spent considerable period time assailant half hour adequate artificial light house full moon outdoors least twice house later woods faced directly intimately casual observer rather victim one personally humiliating crimes description police included assailant approximate age height weight complexion skin texture build voice might satisfied proust ordinarily thorough doubt respondent person raped nature crime rarely witnesses rape victim often limited opportunity observation victim practical nurse profession unusual opportunity observe identify assailant testified habeas corpus hearing something face think ever forget app sure lapse seven months rape confrontation seriously negative factor cases however testimony undisputed victim made previous identification showups lineups photographic showings record reliability thus good one previously resisted whatever suggestiveness inheres showup weighing factors find substantial likelihood misidentification evidence properly allowed go jury affirmed part reversed part remanded justice marshall took part consideration decision case footnotes aided confirmed view thoughtful opinion judge mansfield ex rel radich criminal city new york pet cert pending sub nom ross radich dissent us decline address merits district evidentiary hearing found due process violated appeals reviewing entire record found conclusions fact district judge clearly erroneous said depart practice reverse findings fact concurred two lower courts unless shown clearly erroneous post rule practice lightly overturn concurrent findings fact two lower federal courts salutary one followed applicable think inapplicable dispute parties much elemental facts constitutional significance attached moreover habeas corpus case facts contained primarily state record equally available us federal courts evidentiary hearing district purported confined two specific issues deem controlling nine cases cited dissenting opinion support rule practice urged upon us eight involved civil litigation federal system one cases cited boulden holman involved habeas corpus review simply held basis independent study entire record conclusion reached district appeals justified trial one police officers present identification testified explicitly words spoken identification victim testified physical characteristics caused able identify first uh size next remember voice voice describe voice jury well voice immature youth call immature youth boys first thing made think boy tr rec see clemons app mcgowan en banc cert denied present case controversy view irrelevant whether testified habeas corpus hearing victim actually made identification think evident many testimonial links identification defendant answer yes recognize testimony concerning identification inadmissible conviction must overturned district stated case appears sides admit generally reliable arranged fact done tended needlessly decrease fairness identification process petitioner subjected app see ex rel phipps follette friendly cert denied respondent attaches weight failure victim daughter identify apart fact bear directly reliability mother identification girl years old best tell brief view assailant across room respondent habeas corpus petition raised number claims including one challenging legality detention time viewed victim courts address claims justice brennan justice douglas justice stewart concur concurring part dissenting part granted certiorari case determine whether affirmance equally divided respondent state conviction constitutes actual adjudication within meaning thus bars subsequent consideration issues federal habeas corpus holds today affirmance bar federal relief fully concur aspect opinion regrettably however also addresses merits delves factual background case reverse district finding upheld appeals totality circumstances showup impermissibly suggestive give rise substantial likelihood misidentification unjustified departure practice reverse findings fact concurred two lower courts unless shown clearly erroneous see blau lehman faulkner gibbs dickinson commercial credit chemical foundation baker schofield towson moore cf boulden holman recognizes identification obtained result unnecessarily suggestive showup may still introduced evidence totality circumstances identification retains strong indicia reliability extensive hearing careful review state record however district found circumstances case existed intolerable risk misidentification moreover making determination specifically found complaining witness get opportunity obtain good view suspect commission crime confrontation conducted near time alleged crime rather seven months commission complaining witness unable give good physical description assailant police app appeals conducted review record upheld district findings entirety although case seem fall squarely within bounds rule seems suggest rule inapplicable habeas corpus case facts contained primarily state record equally available us federal courts ante rule however rests upon mere deference trier fact firsthand opportunity observe testimony gauge credibility witnesses rule also serves indispensable judicial making unnecessary waste scarce time resources minor factual questions already accorded consideration two federal courts whose resolution without significance except parties immediately involved thus rule must logically apply even lower courts findings fact based primarily upon state record argues however rule irrelevant view dispute parties much elemental facts constitutional significance attached ante agree even cursory examination opinion reveals concern limited solely proper application legal principles rather extends essentially de novo inquiry elemental facts nature victim opportunity observe assailant type description victim gave police time crime although might reasonably disagree lower courts findings matters rule wisely inhibits us cavalierly substituting view facts simply might adopt different construction evidence resolve ambiguities differently contrary findings final absence exceptional showing error comstock group institutional investors record us simply susceptible showing indeed petitioner argue otherwise therefore dismiss writ certiorari improvidently granted insofar relates question questions presented