385 Mass. 1008

March 11, 1982

The petitioner, Lloyd Arthur Greene, was found guilty of murder in the second degree and sentenced to life imprisonment on May 7, 1973. A motion for a new trial was denied by the trial judge on October 29, 1974. The defendant appealed pursuant to G. L. c. 278, Sections 33A-33G. The conviction was affirmed on May 6, 1977, after the plenary appellate review required under G. L. c. 278, Section 33E. See Commonwealth v. Greene, 372 Mass. 517 (1977). Greene filed a petition for writ of error with the Supreme Judicial Court for the county of Suffolk on November 10, 1978; he claimed error in that portion of the judge's instructions to the jury treating the burden of proof on the issue of self-defense. This petition was followed on January 9, 1979, by the filling of a second motion for a new trial in which Greene advanced the same ground as urged in the writ of error. This motion was denied on June 26, 1979, by a judge of the Superior Court, though not the judge who presided at Greene's trial. On December 21, 1979, a single justice of this court heard and denied a motion for leave to appeal the denial of the second motion for a new trial and Greene did not appeal. Greene then reactivated his petition for writ of error, and, after hearing, it was dismissed by another single justice of this court on April 2, 1981. It is Greene's appeal from this dismissal which is now before us.

Page 1009

This petition is founded on a conviction of murder in the second degree and, therefore, for reasons which are set forth in Leaster v. Commonwealth, ante 547 (1982), decided today, permission of a single justice to appeal is unnecessary. Because the petitioner had an unimpeded avenue of appeal at the time the single justice dismissed his petition for a writ of error, the petitioner had no right to relief by means of a petition for a writ of error. The petition for a writ of error was rightly dismissed. Although it is not timely, the petitioner may pursue his appeal in the Appeals Court.

Judgment of dismissal affirmed.