429 Mass. 1006

April 14, 1999

Paul M. Dantas (petitioner) appeals under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial by a single justice of this court of a petition for relief pursuant to G. L. c. 211, s. 3. A District Court judge had denied the petitioner's motion for discovery. The petitioner has also filed a motion to expedite, noting that the trial in the underlying proceeding is scheduled to begin on April 14, 1999.

We consider the denial of the discovery motion to be interlocutory for purposes of rule 2:21 (1), and examine whether the petitioner has, as rule 2:21 (2) requires, set out reasons why review of the District Court judge's ruling "cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." The petitioner asserts that he cannot adequately obtain review on appeal; states that the material sought is exculpatory and dispositive; refers to an opinion in which we mentioned the avoidance of participating in an unnecessary trial and the saving of unnecessary expense; and concludes that he has made the showing necessary to entitle him to relief. We consider those conclusory assertions to be inadequate as a statement of "the reasons" required by rule 2:21 (2).

Judgment affirmed.

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

Paul M. Dantas, pro se.


429 Mass. 1006

May 18, 1999

This is an appeal from the single justice's denial of the petitioner's request for relief under G. L. c. 211, s. 3. The petitioner had purported to appeal from a trial court ruling denying a motion to withdraw certain guilty pleas. The petitioner is not entitled to relief under G. L. c. 211, s. 3, because another remedy was available: direct appeal of the trial court ruling to the Appeals Court. "Relief under G. L. c. 211, s. 3, is not available where the petitioner has or had adequate and effective avenues other than G. L. c. 211, s. 3, by which to seek and obtain the requested relief. Martineau v. Department Of Correction, 423 Mass. 1007 (1996), and cases cited. Maza v. Commonwealth, 423 Mass. 1006 (1996), and cases cited." Hicks v. Commissioner of Correction, 425 Mass. 1014 , 1014-1015 (1997). The petitioner never attempted to pursue an appeal to the Appeals Court. The petitioner's "failure to follow the proper route [cannot] be excused simply because he has been proceeding pro se" (citation omitted). Lanoue v. Commonwealth, 427 Mass. 1014 , 1015 (1998).

However, even assuming, arguendo, that the petition under G.L. c. 211,

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s. 3, was properly before the single justice, there is no basis for overturning the single justice's denial of the petition. "This court will not reverse a single justice's denial of a petition brought pursuant to G. L. c. 211, s. 3, unless the single justice abused his or her discretion or made a clear error of law." Rogan v. Commonwealth, 415 Mass. 376 , 378 (1993), citing Schipani v. Commonwealth, 382 Mass. 685 (1980). A review of the record before the single justice reveals that, if he reached the substance of the petitioner's claim, he neither abused his discretion nor committed a clear error of law. The transcript of the plea colloquy shows that the trial judge properly informed the petitioner of his right to trial, his right to confront his accusers, and his privilege against self-incrimination. The petitioner waived those rights. He admitted to facts constituting the elements of rape and assault, the crimes to which he pleaded guilty, and he testified that he was pleading guilty voluntarily, not because of threats or pressure. See Commonwealth v. Lopez, 426 Mass. 657 , 660 (1998), and cases cited.

The order of the single justice denying relief under G. L. c. 211, s. 3, is affirmed.

So ordered.

Antonio Semedo, pro se, submitted a brief.