423 Mass. 1005

July 24, 1996

James Hines, pro se.

Scott Harshbarger, Attorney General, & Elisabeth J. Medvedow, Assistant Attorney General, for the defendant.

The petitioner, who was convicted in 1982, filed a petition in the county court in 1995, pursuant to G. L. c. 211, s. 3 (1994 ed.), seeking relief from his conviction. He appeals from the judgment of a single justice denying his petition without a hearing.

It is axiomatic that relief pursuant to G. L. c. 211, s. 3 is not available where the alleged error or abuse can adequately and effectively be remedied through the normal appellate process or through some other available method of review. McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995), and cases cited. Fogarty v. Commonwealth, 406 Mass. 103, 106-107 (1989). DuPont v. Superior Court, 401 Mass. 122 (1987). The errors alleged by the petitioner in this case -- i.e., the selection of a male juror instead of a female to serve as the foreperson, and the trial judge's allegedly inferior treatment of females on the jury -- could have been raised in the petitioner's direct appeal or in an appropriate postconviction motion. See Mass. R. Crim. P. 30, 378 Mass. 900 (1979). The single justice correctly denied the petition, without a hearing, in light of the availability of these other routes which could have been pursued. Caggiano v. Commonwealth, 406 Mass. 1004, 1005 (1990). Simmons v. Commonwealth, 403 Mass. 1004 (1988). Moreover, it appears that the petition is meritless and the claims unsupported by this record.

Judgment affirmed.


423 Mass. 1005

July 25, 1996

Joseph J. Balliro & Joseph J. Balliro, Jr., for the defendant.

Thomas Reilly, District Attorney, & James R. Richards, Assistant District Attorney, for the Commonwealth.

Scott Harshbarger, Attorney General, & Gail M. McKenna, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Bart I. Albano (defendant) argues that his right under the Fifth Amendment to the Constitution of the United States not to be placed twice in jeopardy would be violated if he were to be tried on an indictment charging possession of heroin with intent to distribute. A judgment has been entered in a civil action (G. L. c. 94C, s. 47 [1994 ed.]) forfeiting money, a cellular telephone, and proceeds from the sale of a motor vehicle that were used, or intended for use in, the unlawful drug distribution with which the defendant is charged criminally. A judge in the Superior Court declined to

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dismiss the indictment. The defendant sought relief pursuant to G. L. c. 211, s. 3 (1994 ed.), and a single justice of this court reported the case to the full court. The defendant's contention is answered unfavorably to him in United States v. Ursery, 64 U.S.L.W. 4565 (June 25, 1996). A judgment shall be entered in the county court dismissing the defendant's petition for relief pursuant to G. L. c. 211, s. 3.

So ordered.