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JOHNSON v. SMITH

Nos. 831, 530, Dockets 84-2071, 84-2095.

764 F.2d 114 (1985)

Kenneth JOHNSON, Plaintiff-Appellee-Cross-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Defendant-Appellant-Cross-Appellee.

United States Court of Appeals, Second Circuit.

Decided June 11, 1985.

Attorney(s) appearing for the Case

Kenneth Johnson, pro se.

Louis A. Haremski, Asst. Dist. Atty., Buffalo, N.Y. (Richard J. Arcara, Dist. Atty., Erie County, Buffalo, N.Y., of counsel), for defendant-appellant-cross-appellee.

Before VAN GRAAFEILAND and WINTER, Circuit Judges, and BARTELS, District Judge.

ON PETITION FOR REHEARING:

In view of the procedural posture of this case, we address the issues in a formal opinion.

This case arises out of a petition for habeas corpus filed in the Western District of New York and decided by Judge Elfvin. Petitioner's original habeas petition raised the issues of whether the exclusion of exculpatory eye-witness identification evidence or prosecutorial misconduct denied him a fair trial. These issues having been exhausted...

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