Occasionally a vote to rehear a panel opinion en banc has been effective in the administration of individual justice. See United States ex rel. Whitmore v. Malcolm, 476 F.2d 363 (2d Cir., 1973), slip op. at 1615 (2-1 decision), where following this court's vote to rehear en banc a panel opinion affirming a denial of habeas corpus and with the rehearing en banc pending before us, the State prosecutor dismissed the case against the appellant, thereby mooting the appeal. I speak of a panel decision as one by three judges sitting on a Court of Appeals.

Second, this argument finds no basis in clearly established federal law. Cf. United States ex rel Whitmore v. Malcolm, 476 F.2d 363, 368 (2d Cir. 1983) (declining to find lineup unduly suggestive where police did not insist witness continue with show-up after becoming visibly distraught upon first recognizing and positively identifying her suspected assailant). There was a brief period between the visual and voice identification lineups.

Yet troublesome questions remain in the application of the independent origin rule of Wade that where the illegality of the pre-trial identification procedure is established, the State bears the burden of showing by clear and convincing evidence that the incourt identification was based upon independent observations of the suspect not tainted by those procedures. United States v. Wade, supra, 388 U.S. at 240-41, 87 S.Ct. 1926, 18 L.Ed.2d 1149; United States ex rel. Whitmore v. Malcolm, 476 F.2d 363, 365 n. 2 (2 Cir. 1973); United States ex rel. Robinson v. Vincent, 371 F.Supp. 409, 415-16 (S.D.N.Y.), aff'd, 506 F.2d 923 (2 Cir. 1974).         Here, petitioner having failed to establish any unfairness in the photo identification procedure, the suppression hearing was directed primarily toward resolving the illegality question surrounding the courthouse show-up.

Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." See also, Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977); Drake v. Wyrick, 640 F.2d 912 (8th Cir. 1981); Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975); United States ex rel. Whitmore v. Malcolm, 476 F.2d 363 (2nd Cir. 1973). The foregoing cases decided by the Supreme Court and the federal circuit courts reflect only federal habeas practice.

The foregoing principles elucidated in Townsend and Shaver have been repeatedly affirmed in a number of decisions in the United States Circuit Courts. In addition to Anderson, see Drake v. Wyrick, 640 F.2d 912 (8th Cir. 1981); Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975); United States Ex Rel. Whitmore v. Malcolm, 476 F.2d 363 (2nd Cir. 1973). Both parties are agreed that at the state level in Texas, no authority exists for considering claims of newly discovered evidence in habeas corpus review and that this Court has never in practice done so.

" 369 Mass. at — , 343 N.E.2d at 881.See also United States v. Gambrill, 146 U.S. App.D.C. 72, 449 F.2d 1148, 1153 (1971); United States ex rel. Whitmore v. Malcolm, 476 F.2d 363, 365 n. 2 (2d Cir. 1973); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 739 (3rd Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 121, 38 L.Ed.2d 123 (1973); Martin v. Indiana, supra, 521 F.2d at 686; Huguley v. People, Colo., 577 P.2d 746, 747 (1978); Carter v. State, — Fla.App. — , 366 So.2d 54, 24 Cr.L.W. (BNA) 2114 (1978); State v. Bash, Iowa, 214 N.W.2d 219, 220 (1974); Green v. State, supra, 371 A.2d at 1120; State v. Watts, 296 Minn. 354, 208 N.W.2d 748, 751 (1973); State v. Sahlie, supra, 245 N.W.2d at 479. Many of the foregoing cases, in imposing upon the prosecution the burden of proof of reliability, have relied by analogy on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), an identification case involving the defendant's Sixth Amendment right to counsel.