State of New York Supreme Court, Appellate Division Third Judicial Department
November 8, 2012
THE PEOPLE OF THE STATE OF NEW YORK EX REL. ANTHONY VICKERY, APPELLANT,
JOSEPH WALSH, AS SUPERINTENDENT OF SULLIVAN CORRECTIONAL FACILITY, RESPONDENT.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 24, 2011 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
MEMORANDUM AND ORDER
Calendar Date: September 26, 2012
Before: Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ.
Petitioner, an inmate, made an application for a writ of habeas corpus alleging various constitutional violations and seeking release from prison. Supreme Court signed the writ, which directed petitioner to serve the writ and the petition on, among others, respondent and the Attorney General on or before December 3, 2010. Petitioner failed to do so, and the court subsequently dismissed the petition on jurisdictional grounds, without a hearing, also noting as an alternative ground for denial that petitioner's arguments could have been raised upon a direct appeal from the judgment of conviction or in a collateral motion. Petitioner appeals.
We affirm. There was no showing that petitioner's imprisonment presented an obstacle beyond his control preventing compliance with the service directives and, thus, dismissal for lack of personal jurisdiction was proper (see People ex rel. Watson v Walsh, 7 AD3d 850, 850 ). Further, habeas corpus relief is unavailable where petitioner could have raised his constitutional claims on direct appeal or in a collateral motion (see People ex rel. Brown v Artus, 64 AD3d 1064, 1064 , lv denied 13 NY3d 709 ).
Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger
Clerk of the Court
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