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People ex rel. Flemming v. Rock

Supreme Court of New York, First Department

October 17, 2013

The People of the State of New York, ex rel. Woodrow Flemming, Petitioner-Appellant,
v.
Warden: David Rock, etc., Respondent-Respondent.

Woodrow Flemming, appellant pro se.

Eric T. Schneiderman, Attorney General, New York (Patrick J. Walsh of counsel), for respondent.

Acosta, J.P., Saxe, Renwick, DeGrasse, Richter, JJ.

Order, Supreme Court, New York County (Larry Stephen, J.), entered January 24, 2012, which denied petitioner's application for a writ of habeas corpus and dismissed the petition, unanimously affirmed, without costs.

The petition was improperly brought in a county other than the county of incarceration (see People ex rel. Harris v Conway, 48 A.D.3d 353 [1st Dept 2008], appeal dismissed, lv denied 10 N.Y.3d 884 [2008]). Furthermore, to the extent the petition raises claims that could have been raised on direct appeal or in a CPL article 440 motion, habeas corpus relief is not available (People ex rel. Ragland v Bellnier, 83 A.D.3d 1351 [3d Dept 2011], lv denied 17 N.Y.3d 706 [2011]), and such claims are unavailing in any event. "[A] writ of habeas corpus is not an appropriate vehicle for raising a claim of ineffective assistance of appellate counsel" (People ex rel. Grant v Scully, 190 A.D.2d 543, 544 [1st Dept 1993], appeal dismissed 92 N.Y.2d 946 [1998]).


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