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Morgan v. Jackson

decided: March 8, 1989.

HERMAN B. MORGAN, PETITIONER-APPELLANT,
v.
NORWOOD JACKSON, COMMISSIONER OF CORRECTIONAL FACILITY, WESTCHESTER COUNTY; CHAIRMAN OF THE NEW YORK STATE PAROLE BOARD; ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, AND ELIZABETH HOLTZMAN, DISTRICT ATTORNEY FOR KINGS COUNTY, RESPONDENTS-APPELLEES



Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing habeas corpus petition alleging undue curtailment of cross-examination.

Feinberg, Kearse and Winter, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge.

Petitioner Herman B. Morgan, a New York State parolee, appeals from a final judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing his petition under 28 U.S.C. ยง 2254 (1982), seeking habeas corpus relief on the ground that the court in his state trial for robbery violated his constitutional right to confront witnesses by cutting off his cross-examination of the prosecution's key witness. The district court dismissed the petition on its merits. We affirm the dismissal on the ground that Morgan has not exhausted his state court remedies.

BACKGROUND

Morgan was convicted in Kings County Supreme Court in 1961 of the mugging robbery of Nestor Cruz. At the trial, Cruz testified as follows. Late one afternoon in January 1961, he was approached on a Manhattan street by a stranger whom he identified as Morgan. Morgan offered him $5 to help take some packages to Brooklyn. Cruz agreed and the two went by subway to Brooklyn. After they entered an apartment house and proceeded to the fifth floor, Morgan held a knife to Cruz's throat and took $48 from his wallet. Cruz chased Morgan down the stairs, scuffled with him, and retrieved the money. Morgan then fled, and Cruz went into a candy store and telephoned the police. After making the call, Cruz went home.

Some three weeks later, Cruz and a friend were in a subway in Manhattan when Cruz saw Morgan and identified him as his attacker. Morgan was arrested; in his possession was a knife that Cruz identified as the one used during the robbery. Cruz testified that at the police station, Morgan offered him money to drop the charges.

On cross-examination, Morgan's attorney questioned Cruz at some length about events on the day of the robbery. When counsel inquired into Cruz's actions immediately after the robbery, the following occurred:

Q In any event, after making this call to the police, you said you went home? A Yes, because they told me, "Don't stay around. He might come back."

THE COURT: Did the policeman come there?

THE WITNESS: No.

THE COURT: Did you go to the police station?

THE WITNESS: No.

BY MR. WALKER [Morgan's ...


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