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Hymes v. Sticht

United States District Court, N.D. New York

July 22, 2016

JAMES C. HYMES, Petitioner,
v.
SUPERINTENDENT T. STICHT, Respondent.

          JAMES C. HYMES Petitioner, pro se Wyoming Correctional Facility

          HON. ERIC T. SCHNEIDERMAN Attorney for Respondent Office of the Attorney General

          DENNIS A. RAMBAUD, AAG

          DECISION AND ORDER

          NORMAN A. MORDUE, Senior United States District Judge

         I. INTRODUCTION

         Petitioner 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.[1] 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.

         For the reasons that follow, the petition is dismissed.

         II. RELEVANT BACKGROUND

         On June 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).

         In 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.[2] On December 4, 2015, the Appellate Division denied leave to appeal. Id. at SR 84.

         Petitioner 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).

         This action followed.

         III. DISCUSSION

         A. ...


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