Home EDWARD S. LYKUS vs. COMMONWEALTH.

423 Mass. 1012

August 7, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Edward S. Lykus, pro se.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

The appellant, who is currently incarcerated at the Bay State Correctional Center, sought relief pursuant to G. L. c. 211, s. 3 (1994 ed.), from the denial in the Superior Court of his "motion to correct illegal sentence." A single justice of this court denied relief. This matter is not within S.J.C. Rule 2:21, 421 Mass. 1303 (1995), because the appellant is seeking postconviction relief, not relief from an interlocutory order of a trial court.

The appeal lacks merit in any event. Because the appellant was convicted of a capital offense, and his direct appeal has already been decided by this court, Commonwealth v. Lykus, 367 Mass. 191 (1975), S.C., 406 Mass. 135 (1989), he may pursue an appeal from the denial of his motion only by leave of a single justice of this court. See G. L. c. 278, s. 33E (1994 ed.). See also Commonwealth v. Ambers, 397 Mass. 705 , 710 n.6 (1986). To the extent that the single justice denied relief under G. L. c. 211, s. 3, he did not abuse his discretion or commit an error of law. To the extent that he denied leave to appeal under the "gatekeeper" provision of s. 33E, that decision is final and unreviewable. Commonwealth v. Ambers, supra at 710-711. Because the appellant is not entitled to relief there is no reason to consider his petition for habeas corpus ad testificandum.

Appeal dismissed.

Home JOSEPH A. MESSERE vs. COMMISSIONER OF CORRECTION

423 Mass. 1012

August 16, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Joseph A. Messere, pro se.

Philip W. Silva for the defendant.

This is a purported appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of relief by a single justice of this court under G. L. c. 211, s. 3 (1994 ed.). The plaintiff filed in the Superior Court an "Action in the Nature of Certiorari" and, thereafter, a number of other motions. He now requests that the full court allow his motion for partial summary judgment. He has not demonstrated, as required by rule 2:21 (2), that review on appeal of a ruling in the trial court will not adequately protect his interests.

Judgment affirmed.

Home JOSE HERNANDEZ vs. COMMONWEALTH.

423 Mass. 1012

August 16, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Jose Hernandez, pro se.

S. Jane Haggerty, Assistant District Attorney, for the Commonwealth.

Jose Hernandez (defendant) unsuccessfully sought a stay of proceedings

Page 1013

in the Appeals Court pending a decision on his motion under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), for a new trial. A single justice of this court denied his request for relief under G. L. c. 211, s. 3 (1994 ed.), and he then sought review in the full court under S.J.C. Rule 2:21, 421 Mass. 1303 (1995).

The appeal from which the defendant sought a stay was the subject of oral argument in the Appeals Court on April 18, 1996. [Note 1] The defendant has not demonstrated what remedy, if any, could have been obtained thereafter from either the single justice or from this court.

Judgment affirmed.


FOOTNOTES

[Note 1] We note that the Appeals Court issued a memorandum and order pursuant to its rule 1:28 on July 29, 1996, affirming the judgment. Commonwealth v. Hernandez, 41 Mass. App. Ct. 1101 (1996).