180 F.3d 371,
Joseph Martin GAINES, Petitioner-Appellant,v.Walter KELLY, Superintendent, Attica Correctional Facility,Respondent-Appellee.
No. 96-2761.
United States Court of Appeals,Second Circuit.
June 4, 1999.

Appeal from the United States District Court for the Western District of New York (Arcara, J.).
Appearing for Appellant: Gail Jacobs, Great Neck, NY.
Appearing for Appellee: Thomas H. Brandt, Assistant District Attorney, Lockport, NY (Matthew J. Murphy, III, District Attorney for the County of Niagara, on the brief).
Present: CARDAMONE, JACOBS, Circuit Judges, CARMAN, Chief Judge.*

ORDER

1
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 4th day of June, one thousand nine hundred and ninety-nine.


2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be REVERSED.


3
Joseph Martin Gaines appeals from the final judgment of the United States District Court for the Western District of New York denying Gaines's petition for writ of habeas corpus and dismissing his 28 U.S.C. § 2254 action.


4
The judgment of the district court is hereby REVERSED on the ground that the state trial court's reasonable doubt instruction was constitutionally defective.  An opinion further explaining the panel's reasons shall follow forthwith.  This case is hereby REMANDED to the district court with instructions to grant Gaines's petition and to order Gaines's release from custody unless the State of New York provides him with a new trial within sixty (60) days of the date of entry of the district court's order.


5
The mandate shall issue immediately.



*
 The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation


