The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
Petitioner Kevin Corrigan ("Corrigan") filed this pro se
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c), the parties have consented
to disposition of this matter by the undersigned. Corrigan seeks
to overturn his conviction solely on the basis that the
reasonable doubt charge given at his trial was unconstitutional.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Corrigan was tried before a jury in Niagara County Court
(Hannigan, J.) in September 1979 on charges stemming from two
1977 attacks. At trial, the judge instructed the jurors that a
reasonable doubt is one which "leaves your mind in state of
suspense, so that you are not able to say that you are convinced
to a moral certainty of the defendant's guilt." T. 1371.*fn1
According to the judge's charge, a reasonable doubt "must,
therefore, be based entirely and absolutely upon some good,
sound, substantial reason." T. 1371. The judge again directed the
jurors that if they were "morally and reasonably certain as to
the defendant's guilt," it was their "duty to convict [him]." T. 1372.*fn2 Defense counsel did not object to the
charge as given.
Corrigan was convicted on September 19, 1979, of two counts of
second degree murder, two counts of assault in the first degree,
and four counts of attempted robbery in the first degree. On
October 18, 1979, Corrigan was sentenced to two consecutive terms
of 25 years to life.
On direct appeal, the Fourth Department unanimously affirmed
Corrigan's conviction, People v. Corrigan, 139 A.D.2d 918
(4th Dept. 1988), but modified his sentence by reducing the
aggregate minimum term of imprisonment from 50 years to 25 years.
The New York Court of Appeals denied leave to appeal on May 9,
1988. People v. Corrigan, 72 N.Y.2d 917 (1988).
Corrigan challenged the constitutionality of the reasonable
doubt instruction given at his trial for the first time in a
motion to vacate the judgment pursuant to New York Criminal
Procedure Law ("C.P.L.") § 440.10 filed on January 31, 1997.
Judge Hannigan denied the motion in an order entered May 8, 1997,
relying exclusively on the state procedural bar of C.P.L. §
440.10(2)(c) (trial court must deny a motion to vacate a judgment
where, although sufficient facts appeared on the record to have permitted appellate review
of the issues, the defendant unjustifiably failed to raise them
on direct appeal). The Fourth Department denied leave to appeal
on August 1, 1997.
Corrigan filed an application for a writ of error coram nobis
on October 3, 1997. This motion was denied by the Fourth
Department in a summary order entered November 19, 1997. People
v. Corrigan, 670 N.Y.S.2d 649 (Table), 244 A.D.2d 1013 (4th
Dept. 1997). Corrigan did not seek leave to appeal.
Over two and a half years later, Corrigan challenged the
propriety of the reasonable doubt instruction in a second C.P.L.
§ 440.10 motion filed June 13, 2000. Corrigan relied upon the
then-recent Second Circuit decision in Gaines v. Kelly,
202 F.3d 598 (2d Cir. 2000).*fn3 County Court (Sperrazza, J.)
again denied the motion based on C.P.L. § 440.10(2)(c) without
considering the merits of Corrigan's claim. See 8/23/00 County
Court C.P.L. § 440.10 Order, submitted as part of Respondent's
Memorandum of Law (Docket #7).
Corrigan filed the instant federal habeas petition on March 13,
DISCUSSION I. Timeliness of the Petition
A. Statute of Limitations Under AEDPA
One of the changes wrought by AEDPA*fn5 is the imposition
of a one-year limitations period on habeas petitions which begins
to run from the latest of several events, including the date on
which the challenged state court judgment becomes final. See
28 U.S.C. § 2244(d)(1); Bennett v. Artuz, 199 F.3d 116, 118 (2d
Cir. 1999), aff'd, 531 U.S. 4 (2000). AEDPA's one-year
limitations period does not apply in a strict sense to Corrigan's
petition because his conviction became final on May 9, 1988, well
before the enactment of AEDPA on April 24, 1996. See Bennett,
199 F.3d at 118 (citing Reyes v. Keane, 90 F.3d 676, 678-79 (2d