This case is again before us, our previous disposition having been vacated and remanded by the United States Supreme Court for further proceedings consistent with its opinion. See 611 F.2d 754 (9th Cir. 1979), mandate stayed, 446 U.S. 1302, 100 S.Ct. 1630, 64 L.Ed.2d 216 (1980) (Rehnquist, Circuit Justice), cert. granted, -- U.S. --, 100 S.Ct. 3055, 65 L.Ed.2d 1139 (1980), vacated and remanded, -- U.S. --, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

As the Supreme Court did not quarrel with the merits of our prior decision, see 101 S.Ct. at 771-72, we therefore adopt herein all of that opinion insofar as it discussed the merits of the controversy. The only basis for the Supreme Court's action was our neglect in failing explicitly to apply the federal habeas corpus statute, 28 U.S.C. § 2254(d),1 which requires thata habeas court include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors (contained in § 2254(d)) were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record."

101 S.Ct. at 771.

Having received additional briefing by the parties, we now seek to fulfill the "congressional mandate" of 28 U.S.C. § 2254(d), essential to the "smooth functioning" of our federal system and the alleviation of "friction between state and federal courts." Mindful of the Court's admonition, and the example of Taylor v. Lombard, 606 F.2d 371, 372, 375 (2d Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980),2 we have again reviewed the state court record as a whole and have made our own independent legal determination.

In "full awareness" of § 2254(d), we conclude that our original legal conclusions3 were correct. We do not dispute the state court's factual record per se. Thus, the explicit presumption of correctness of state court findings of fact embodied in § 2254(d), absent a conclusion by a reviewing federal court that (a) one of the seven enumerated factors exists, (b) "such factual determination is not fairly supported by the (state court) record,"4 or (c) that the habeas applicant has established by "convincing proof that the factual determination by the State court was erroneous,"5 is not invoked in this case. We disagree with the state court over the legal and constitutional significance of certain facts.

Neither the 1966 amendments to § 2254(d) nor the Supreme Court's opinion in this case alters the basic indeed, fundamental distinction between state court findings of fact, which are presumed correct under § 2254(d), and conclusions of law, which are not. See Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-1715, 64 L.Ed.2d 333 (1980) (state court holding that lawyers had not undertaken "multiple representation" is not a "basic, primary, or historical fact," but a mixed determination of law and fact that requires the application of legal principles to "historical facts"; that holding does not fall within § 2254(d) and is open to review on collateral attack in a federal court); Townsend v. Sain, 372 U.S. 293, 309 n.6, 310-18, 83 S.Ct. 745, 755 n.6, 755-760, 9 L.Ed.2d 770 (1963);6 Brown v. Allen, 344 U.S. 443, 497-508, 73 S.Ct. 397, 441-447, 97 L.Ed. 469 (1953) (separate opinion of Frankfurter, J.).7 See generally Sumner v. Mata, -- U.S. --, 101 S.Ct. 764, 773-74, 66 L.Ed.2d 722 (1981) (Brennan, J., dissenting); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246-1247, 16 L.Ed.2d 314 (1966); Baumgartner v. United States, 322 U.S. 665, 670-71, 64 S.Ct. 1240, 1243-1244, 88 L.Ed. 1525 (1944); Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 246-47, 276 (1955); Strong, The Persistent Doctrine of "Constitutional Fact", 46 N.C.L.Rev. 223 (1968).

We believe that the "impermissible suggestiveness" of the pretrial photographic identification procedure used in this case is a mixed question of law and fact, freely reviewable by a federal court on habeas. Cf. Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-1242, 51 L.Ed.2d 424 (1977) (the question of waiver of defendant's Sixth Amendment rights "was not a question of historical fact, but one which, in the words of Mr. Justice Frankfurter, requires 'application of constitutional principles to the facts as found ' Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (separate opinion)"); Neil v. Biggers, 409 U.S. 188, 193 n.3, 93 S.Ct. 375, 379, 34 L.Ed.2d 401 (1972) (due process claim in habeas action; customary deference to lower court's findings of fact is "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"); Brown v. Allen, 344 U.S. at 507, 73 S.Ct. at 446 ("the question whether established primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest on the State decision").

Cognizant of the important intent and function of § 2254(d) in our federal system, we nonetheless adhere to the reasoning and conclusion of our prior decision. As we stated in Taylor v. Cardwell, 579 F.2d 1380, 1383 (9th Cir. 1978), "(w)hile federal courts defer the proper state findings of historical fact, the federal court itself must determine the legal effect of these facts, and it must apply the proper federal legal standard in doing so." Lest the reviewing court "be left to guess" as to our reasons for granting habeas relief notwithstanding the provisions of § 2254(d), we reiterate: As our original analysis indicates, see 611 F.2d at 755-57, we substantially agree with the "historical" or "basic" facts adduced by the California Court of Appeal, Fifth Appellate District, in pages 2-4 of its August 4, 1975 opinion. We disagree, however, with the application of the Simmons standard grounded in the due process protections of the federal Constitution to the totality of the circumstances of this case. Thus, we reject the legal conclusion of the state court that "(t)he circumstances indicate the inherent fairness of the (pretrial photographic identification) procedure, and we find no error in the admission of the identification evidence."

For the reasons set forth in our original opinion8 and in this supplemental opinion, we conclude as we did in the beginning that Mata is entitled to a new trial without the introduction of constitutionally impermissible evidence against him. Accordingly, the challenged Order of the District Court is reversed. Upon remand, the District Court will hold the Petition in abeyance for a period of ninety days, within which time California's prosecutors may, if they so choose, initiate a new trial against the appellant, a trial in which prosecutorial evidence barred by the federal Constitution will not be introduced.

REVERSED and REMANDED, with directions.

For the second time in this case I respectfully, and to some degree sorrowfully, dissent.

It is obvious to me that the majority opinion in Sumner v. Mata, -- U.S. --, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), treated the issue whether the photographic identification was impermissibly suggestive as a finding entitled to the " 'presumption of correctness' which is mandated by the statute (28 U.S.C. § 2254(d)) to the factual determinations made by the California state courts." -- U.S. at --, 101 S.Ct. at 769. It is equally obvious that Justice Brennan's dissenting opinion in Sumner v. Mata, supra, treated the same issue as not entitled to the presumption afforded by section 2254(d) because it was not one of fact but rather one concerning the "constitutional significance of the facts." -- U.S. --, 101 S.Ct. at 774.

Judge Ely, speaking for the majority of this court, has adopted Justice Brennan's characterizations of the issue of impermissible suggestiveness. I cannot join in this disregard of the Supreme Court's authority.

On the merits I would remand this case to the district court to permit Mata another opportunity to rebut the presumption of correctness of the finding of the California Court of Appeal with respect to impermissible suggestiveness. As the record presently stands that presumption has not been rebutted. Presumably the Supreme Court also considered it unrebutted because to conclude otherwise is to characterize their opinion as but an hortatory essay and their remand as a futile act. I cannot join in such characterizations.

SNEED, Circuit Judge, dissenting.