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COLLINS v. HERBERT

December 17, 1997

NATHANIEL COLLINS, Petitioner,
v.
VICTOR T. HERBERT, Respondent.



The opinion of the court was delivered by: HECKMAN

 The parties have consented pursuant to 28 U.S.C. § 636(c) to have the undersigned conduct all further proceedings in this petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons that follow, the petition is denied.

 BACKGROUND

 As set forth in this court's decision and order dated January 7, 1997, petitioner was convicted on November 29, 1989 in Niagara County Court. The jury found him guilty on four counts of rape in the first degree and four counts of sexual abuse in the first degree. Petitioner was represented at trial by Assistant Niagara County Public Defender Joseph L. Arbour, Esq. Judgment of conviction was entered by Hon. Charles J. Hannigan on January 11, 1990 and petitioner was sentenced to a maximum term of 15 years and a minimum term of 5 years on the rape charges, to run concurrently with his sentence of 2 1/3 to 7 years on the sexual abuse charges (see Item 1; Item 19, App. C, pp. 1-2).

 Notice of appeal was timely filed, and the Public Defender was assigned to represent petitioner on his appeal. Petitioner asserted the following grounds for appeal:

 
1. The unsworn testimony of the victim (petitioner's minor daughter) was not sufficiently corroborated to support the convictions; and,
 
2. The trial court, in its instructions to the jury, unduly emphasized petitioner's failure to testify on his own behalf.

 (Appellant's Brief, Item 10, App. B). On February 1, 1991, the Appellate Division, Fourth Department unanimously affirmed the judgment of conviction, specifically rejecting each of these arguments. People v. Collins, 170 A.D.2d 1006, 566 N.Y.S.2d 161 (4th Dept. 1991). On May 16, 1991, the New York Court of Appeals denied petitioner's request for leave to appeal the Fourth Department's decision. People v. Collins, 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405 (1991).

 By notice dated March 8, 1994, petitioner filed a motion pursuant to N.Y.C.P.L. § 440 *fn1" to vacate the judgment of conviction (Item 10, App. G). In support of this motion, petitioner argued that Judge Hannigan's instructions to the jury on the requisite standard of proof resulted in a violation of petitioner's sixth amendment right to be found guilty beyond a reasonable doubt (Aff. of Daniel P. Grasso, Esq., Item 10, App. G). In a decision and order dated May 4, 1994, Judge Hannigan denied petitioner's motion, stating as follows:

 
The Defendant, on this 440 Motion, complains of the charge to the jury. This case has been heard on direct appeal. The conviction was affirmed. The application for leave to appeal further was denied. . . . The Defendant was given a fair and full opportunity to raise any issues on direct appeal. Full and fair review is the rule; no [sic] endless review.

 The habeas corpus petition in this case was filed on April 4, 1995. Petitioner asserted the following grounds for habeas corpus relief:

 
1. Denial of effective assistance of appellate counsel for failure to raise the propriety of Judge Hannigan's jury charge on the "reasonable doubt" ...

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