United States District Court, N.D. New York
JAMES C. HYMES, Petitioner,
SUPERINTENDENT T. STICHT, Respondent.
C. HYMES Petitioner, pro se Wyoming Correctional Facility
ERIC T. SCHNEIDERMAN Attorney for Respondent Office of the
A. RAMBAUD, AAG
DECISION AND ORDER
A. MORDUE, Senior United States District Judge
James C. Hymes filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254 in which he argues that
trial and appellate counsel were ineffective. Dkt. No. 1,
Petition, at 1, 4-5. On September 19, 2016, the Court directed
petitioner to file an affirmation in which he explained why
the statute of limitations should not bar his petition. Dkt.
No. 6. Petitioner submitted the required affirmation, and the
Court directed the named respondent to answer the petition.
Dkt. No. 8, Affirmation; Dkt. No. 9, Decision and Order. On
January 11, 2017, the Court granted respondent's motion
to file an answer limited to whether the petition was timely
filed. Dkt. No. 12, Text Order. Respondent filed his limited
answer on January 13, 2017. Dkt. No. 13, Answer Limited to
the Issue of Timeliness; Dkt. No. 13-1, Memorandum of Law in
Opposition to Petition for a Writ of Habeas Corpus; Dkt. No.
14, State Court Record ("SR."). Petitioner was
given an opportunity to file a reply. Dkt. No. 12. To date,
he has not done so.
reasons that follow, the petition is dismissed.
1, 2005, petitioner was sentenced to serve an aggregate term
of 17 1/3 to 22 years in prison followed by a period of
post-release supervision for his convictions of attempted
second degree murder (N.Y. Penal Law §110/125.25(1)),
second degree criminal possession of a weapon (N.Y. Penal Law
§265.03(2)), and first degree reckless endangerment
(N.Y. Penal Law §120.25). Dkt. No. 1 at 1; Dkt. No. 13-1
at 1. On February 11, 2010, the Appellate Division, Fourth
Department, affirmed his conviction, and on July 7, 2010, the
New York Court of Appeals denied leave to appeal. People
v. Hymes, 70 A.D.3d 1371 (4th Dep't.
2010), lv. denied 15 N.Y.3d 774 (2010).
papers dated May 23, 2015, petitioner moved to vacate his
conviction pursuant to CPL §440.10, in which he claimed
trial counsel was ineffective because he failed to properly
advise petitioner regarding a plea offer. Dkt. No. 14 at
¶ 56-69. The Oneida County Court denied the motion on
the merits on October 9, 2015. Id. at SR
70-83. On December 4, 2015, the Appellate
Division denied leave to appeal. Id. at SR 84.
next filed an application for a writ of error coram nobis,
dated December 22, 2015, in which he claimed appellate
counsel was ineffective. Dkt. No. 14 at ¶ 85-93. On
March 18, 2016, the Appellate Division denied the
application. Id. at SR 94. On June 27, 2016, the New
York Court of Appeals denied petitioner's application for
leave to appeal. Id. at SR 95; see Hymes,
137 A.D.3d 1632 (4th Dep't. 2016); lv.
denied 27 N.Y.3d 1133 (2016).