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The jury impaneled for that trial could have concluded from the evidence presented to it that respondent, a few days after his release from a Texas penitentiary in June 1954, kidnaped Mr. and Mrs. Alex Holm and forced them at gunpoint to accompany him in their car. Stubbs drove the car and sat in the front seat, while the Holms sat in the back seat. Mr. Holm testified that somewhere east of Blountville, Tennessee, Stubbs, without saying anything, shot him twice in the head and shot and killed Mrs. Holm. Stubbs then left the car, obtained a ride as a hitchhiker, and was ultimately arrested at a roadblock. At the time of his arrest, Stubbs explained the blood on his clothing as having resulted from his having fallen off a cliff while fishing.
Stubbs took the stand in his own defense, admitted that he had kidnaped the Holms at gunpoint, and that as he drove the Holms' car, with them in the back seat, he at intervals pointed the gun in Mrs. Holm's face. He testified that during the ride he apologized for forcing a ride; that the Holms then assured him they would let him out at Bristol, Tennessee, and would not cause him any trouble; and that he therefore laid the pistol on the front seat of the car. He also testified that near Bristol, Tennessee:
“It seems awful strange, but everything just seemed to be awful still and I remember a tree and it just seemed to come up just like that in clear focus, but in a reddish haze. I mean there was no pain or nothing. . I felt a sharp pain that seem to start in my head and go all the way down through me and I reached up with both hands and I heard this loud roar, bang ... Stuff started running down my face and down my shirt and all that I could think of that he has got the gun. I just went outside through the car door.
Opinion of the Court
on the ground that it had been issued in violation of the provisions of the Norris-LaGuardia Act. Dealing with a "preliminary claim” of mootness in that case, the Court said:
“The claim of mootness is also based on an affidavit stating that after dismissal of the appeal by the Court of Appeals, the union lifted its boycott. Since the record does not show that a stay of the injunction was granted pending action in this Court, we must assume that the union's action was merely obedience to the judgment now here for review.
We therefore turn to the merits.” 333 U. S., at 442. Much earlier the Court had stated a similar view of mootness in these circumstances:
“There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover if he reverses the judgment by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal.” Dakota County
v. Glidden, 113 U. S. 222, 224 (1885). Under these authorities the case is not moot, and we turn to the merits.
II In July 1954, respondent was convicted in the Tennessee trial court of murder in the first degree, assault with intent to murder, and two counts of kidnaping.
the same sentence, based upon still another conviction in Texas. However, he was appealing from that sentence on grounds that the Texas conviction was constitutionally infirm, and that appeal has not run its course even through the state courts.
Until it can be said with certainty that the New York courts may validly resentence respondent to the same term as they imposed prior to the decision of the Court of Appeals now under review here, petitioner continues to have an interest in the availability of the Tennessee conviction as a support for second-offender sentencing of respondent. Petitioner's obedience to the mandate of the Court of Appeals and the judgment of the District Court does not moot this case. In Bakery Drivers v. Wagshal, 333 U. S. 437 (1948), the union appealed from an injunction issued by the United States District Court
1 The dissent states that this case is controlled by SEC v. Medical Committee, 404 U. S. 403 (1972). In that case, respondent committee had requested Dow Chemical to place the committee's proposed resolution on the proxy statement for the annual meeting of Dow Chemical stockholders. Dow Chemical initially refused the request, and the committee thereupon invoked the aid of the SEC to bring suit against Dow Chemical to compel inclusion of the proposal. The SEC refused to bring suit, and the committee then succeeded in having the agency's refusal set aside by the Court of Appeals. While review of this latter action was pending here, Dow Chemical acceded to the committee's request. The committee thereby accomplished the purpose for which it sought ancillary assistance from the SEC, not because of compliance by the SEC with the judgment under review, but because of the action of Dow Chemical, which was not required to do anything by that judgment.
There would be a rough parallel between our case and SEC v. Medical Committee if, pending review here of the ruling of the Court of Appeals in favor of Stubbs, the Governor of New York should pardon Stubbs. But, on the facts we have before us now, the mootness issue is controlled by Bakery Drivers v. Wagshal, 333 U. S. 437 (1948), and Dakota County v. Glidden, 113 U. S. 222 (1885), rather than by SEC v. Medical Committee.
Opinion of the Court
BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in Part II of which Douglas, J., joined, post, p. 216.
Maria L. Marcus, Assistant Attorney General of New York, argued the cause for petitioner. With her on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Stanley L. Kantor, Deputy Assistant Attorney General.
Bruce K. Carpenter (for Court appointment of counsel, see 406 U. S. 941) argued the cause and filed a brief for respondent.
Melvin Bressler filed a brief for the District Attorney of Monroe County, New York, as amicus curiae.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Stubbs was convicted of a felony in a New York State court and sentenced as a second offender under the laws of that State by reason of a prior Tennessee murder conviction obtained in 1964. He thereafter sought federal habeas corpus, claiming that the Tennessee conviction was had in violation of his Sixth and Fourteenth Amendment right to confront witnesses against him, and thus could not be used by New York as the predicate for a stiffer punishment. The District Court denied habeas corpus, but the Court of Appeals reversed, 442 F. 2d 561 (CA2 1971). We granted certiorari, 404 U. S. 1014, and reverse for the reasons hereinafter stated.
I Prior to our consideration of the merits it is necessary to deal with a suggestion that because petitioner did not seek a stay of the mandate of the Court of Appeals, but rather obeyed it and resentenced Stubbs, this case is therefore moot. The parties agreed at oral argument that Stubbs upon resentencing in New York had received
MANCUSI, CORRECTIONAL SUPERINTENDENT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 71-237. Argued April 17, 1972—Decided June 26, 1972
New York State sentenced respondent as a second offender, based
on his 1964 felony conviction in Tennessee. Respondent's petition for federal habeas corpus, denied by the District Court, was granted by the Court of Appeals, which concluded that the Tennessee conviction violated his Sixth and Fourteenth Amendment right to confront witnesses and thus was not available as the predicate for a “second offender” stiffer punishment. The State then resentenced respondent to the same sentence, based upon still another conviction in Texas. Held:
1. New York State's resentencing of respondent did not moot the instant case since the respondent's appeal involving the validity of the Texas conviction is still in the New York state courts, and therefore New York State has a present interest in the availability of the Tennessee conviction as a predicate for the stiffer punishment. Pp. 205–207.
2. Upon discovering that a State's witness had removed himself permanently to a foreign country, the State of Tennessee was powerless to compel his attendance at respondent's second trial, either through its own process or through established procedures depending upon the voluntary assistance of another government; the resultant predicate of unavailability was sufficiently strong not to warrant a federal habeas corpus court's upsetting the State's determination that the witness was not available. Barber v. Page, 390 U. S. 719, distinguished. Pp. 207–213.
3. Where a State's witness is bona fide unavailable, the requirements of the Confrontation Clause are met when prior-recorded testimony of the witness is admitted, as occurred in the 1964 trial, if that prior testimony bears "indicia of reliability” that would afford “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Dutton v. Evans, 400 U. S. 74,
89. Pp. 213-216. 442 F. 2d 561, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which