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MARSHALL, J., dissenting

408 U.S.

shal, 333 U. S. 437 (1948). But that principle does not protect the unsuccessful litigant who goes beyond what is required of him, and obtains relief in some way not prohibited by the judgment against him. Thus, the debtor does moot his case by entering into a compromise in settlement of the debt. Dakota County v. Glidden, 113 U. S., at 224-227. And the union might well moot its case if all the striking employees left the store and obtained other employment elsewhere.

This case would come within the principle of Dakota County and Bakery Drivers, if New York had simply abandoned, temporarily, its attempt to impose an enhanced recidivist sentence, pending review of the judgment below. But New York did more than merely submit to the decision below; it found a complete substitute for the result it had sought in the Court of Appeals, and the result it continues to seek here. By reversing the judgment below, this Court gives New York no relief it has not already obtained.

The Court offers a second reason to disregard the resentencing in this case, however, and that reason is perhaps independent of the first. The Court argues that the Texas conviction, and the resentencing based on it, may be found invalid in other proceedings, in which case New York may wish to revive its interest in the Tennessee conviction. Thus, the argument rests on the Court's estimate that the controversy that gave

2 The Court seeks to distinguish SEC v. Medical Committee, 404 U. S. 403 (1972), on the ground that in that case the action relied on to moot the case was taken by a third party rather than by a litigant. I can see no relevant difference, however, between the action of a third party, and the action of a litigant which goes beyond mere pendente lite compliance with the court order, so long as that action gives the litigant the relief he seeks. If burning down a building will moot a case, surely that is so whether the fire is set by a litigant or a lightning bolt, though the litigant may, of course, be subject to sanctions quite apart from the case he has rendered moot.

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that Tennessee conviction. For, after the United States Court of Appeals held that it was constitutionally defective, New York substituted for the Tennessee conviction an earlier Texas conviction, and reinstated precisely the same enhanced sentence it had previously imposed.1

In determining that this case is nevertheless appropriate for adjudication here, the Court seems to rely on two separate factors. First, it reasons that the event that seems to moot the case the resentencing-was merely the State's obedience to the adverse judgment below, and for that reason cannot moot the controversy. And, second, it reasons that the resentencing may prove to be defective as a matter of law, that New York may in the future wish to rely on the Tennessee conviction again, if the Texas conviction should prove to have defects of its own.

case.

The first proposition falls wide of the mark in this It is well established that an unsuccessful litigant does not moot his case by complying with an unfavorable judgment pending the disposition of his appeal. Thus, a debtor does not moot his case by paying the judgment against him pendente lite. Dakota County v. Glidden, 113 U. S. 222 (1885). And if a union is enjoined from boycotting or striking at a particular store, the union does not moot the case by lifting the boycott or strike pendente lite. Bakery Drivers v. Wag

1 Under the then-applicable New York sentencing statute, former N. Y. Penal Law § 1941, one prior conviction was sufficient to trigger the recidivist sentencing provisions, and Stubbs received the maximum authorized recidivist sentence. New York has subsequently amended its law to increase the maximum recidivist sentence, and to provide that two prior convictions are necessary to trigger the recidivist statute, N. Y. Penal Law § 70.10. The new provisions do not, however, apply to this case, because the underlying New York conviction here was obtained before the effective date of the new statute. N. Y. Penal Law § 5.05.

MARSHALL, J., dissenting

408 U.S.

Holm his own views as to whether Stubbs had become a guest in the Holm car prior to the time that he turned from the front seat, shot Mr. Holm, and killed Mrs. Holm-however interesting they might have been to hear-could not have prejudiced Stubbs' case as to any issue that the jury was authorized to deliberate under the trial judge's charge.

Since there was an adequate opportunity to crossexamine Holm at the first trial, and counsel for Stubbs availed himself of that opportunity, the transcript of Holm's testimony in the first trial bore sufficient "indicia of reliability" and afforded "the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' ""Dutton v. Evans, 400 U. S., at 89. The witness Holm, consistently with the requirement of the Confrontation Clause, could have been and was found by the trial court to be unavailable at the time of the second trial. There was, therefore, no constitutional error in permitting his prior-recorded testimony to be read to the jury at that trial, and no constitutional infirmity in the judgment of conviction resulting from that trial that would prevent the New York courts from considering that conviction in sentencing Stubbs as a second offender. The judgment of the Court of Appeals is therefore

MR. JUSTICE MARSHALL, dissenting.

I

Reversed.

I would dismiss the writ in this case as improvidently granted. The question presented to the courts below concerns the constitutional validity of a 1964 Tennessee conviction. The New York courts had relied on that conviction to sentence respondent as a multiple offender, after his conviction in 1966 for a New York offense. It was conceded at oral argument, however, that New York has no present interest whatever in

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Opinion of the Court

in haec verba in 1954, they were nonetheless adverted to in the earlier cross-examination. No one defense counsel will ever develop precisely the same lines of inquiry or frame his questions in exactly the words of another, but from this record counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial.

The Court of Appeals concluded that the crossexamination had been inadequate. It reached this conclusion, at least in part, because it felt that Holm could have been questioned about whether Stubbs, although originally having kidnaped the Holms at gunpoint, later became in effect their guest. Parts of Stubbs' own testimony presented that version of the events to the jury, and the Second Circuit thought it significant because even if Stubbs fired his pistol accidentally, he might still have been found guilty of felony murder unless the felony of kidnaping had ended. Under this theory, if Stubbs had during the trip been transmogrified from a kidnaper into a guest, at least the argument to the jury as to whether the kidnaping had ended before the shooting would have been strengthened by any support Holm's testimony might have given to this notion.

The Tennessee trial court, however, did not charge that the jury could convict Stubbs of felony murder as a result of a death occurring during a kidnaping. Its charge authorized conviction upon a finding of premeditated murder, or upon a finding of murder during the commission of robbery. The failure to elicit from

+ This was in accord with the Tennessee felony-murder statute which provides:

“Every murder . . . committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, or larceny, is murder in the first degree." Tenn. Code Ann. § 39-2402.

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sel who could and did effectively cross-examine prosecution witnesses.

Stubbs urges that because the 1954 conviction was itself overturned by a federal habeas court on a finding of ineffective assistance of counsel, that court must necessarily have concluded that the cross-examination of Holm conducted by such counsel likewise fell short of constitutional standards. The federal habeas judge in Stubbs v. Bomar, supra, however, rested his determination on an apparent per se rule of ineffective assistance that was conclusively presumed from the short interval between the time of counsel's appointment and the date of the trial. If the habeas court had rendered its decision after our holding in Chambers v. Maroney, 399 U. S. 42 (1970), which disapproved any such per se rule, it might have addressed itself to the effectiveness of the examination of the witness Holm. But it did not in fact do so. When Stubbs appealed his 1964 conviction to the Supreme Court of Tennessee, that court in affirming the judgment expressly determined that the prior cross-examination of Holm had been adequate. Stubbs v. State, 216 Tenn. 567, 393 S. W. 2d 150 (1965). Whatever might be the case in other circumstances, the State of New York was not bound under any theory of res judicata by Stubbs v. Bomar as to the efficacy of the prior cross-examination of the witness Holm.

Stubbs also contends that even though the prior determination may not be binding upon subsequent review, the fact that counsel was appointed only four days before trial necessarily requires a finding that the cross-examination of Holm was constitutionally inadequate. Counsel for Stubbs at the 1964 trial placed in the record a list of 12 questions not asked of Holm in 1954, which he said he would have asked had the witness been present at the second trial. With one exception these were directed to the events leading up to and surrounding the shooting. Though not asked

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