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CORRIGAN v. BARBERY

May 3, 2005.

KEVIN CORRIGAN, Petitioner,
v.
JAMES BARBERY, Respondent.



The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge

DECISION AND ORDER

INTRODUCTION

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, 2001.*fn4

  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 Cir. ...


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