430 Mass. 1001

July 14, 1999

Lance 3X Hullum, the petitioner, appeals under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of relief by a single justice of this court. In his memorandum filed pursuant to rule 2:21, the petitioner apparently refers to what he considers to be evidence of discriminatory or selective prosecution.

We have reviewed both the memorandum and the underlying petition pursuant to G. L. c. 211, s. 3, for relief by a single justice of this court. We do not find any reference to a specific interlocutory ruling in the trial court. See S.J.C. Rule 2:21 (1). There is an unexplained reference at the end of the petition to "the order below." An assistant district attorney suggested in a letter to the court that the petitioner might be referring to the denial by a trial court judge of the petitioner's motion to dismiss indictments against him because of selective prosecution. The petitioner then informed the court that his petition was based on the denial of his motion to dismiss.

We assume that the petitioner has identified an interlocutory ruling in the trial court, and turn to the requirement of rule 2:21 (2) that he "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means" (emphasis added). The petitioner suggests that he may be deprived of the evidence of certain inmate witnesses because they may not be available to him following trial and appeal because some of the inmates may have been relocated or released in the interim. That possibility does not comport with the command of rule 2:21 (2).

Judgment affirmed.

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

Lance 3X Hullum, pro se.


430 Mass. 1001

July 29, 1999

Samuel Jones (petitioner) appeals from the denial of his petition, pursuant to G. L. c. 211, s. 3, for relief by a single justice of this court. He had sought review of a Superior Court judge's dismissal of his complaint as to the city of Boston, and of another judge's dismissal of his complaint as to the Massachusetts Bay Transportation Authority (MBTA).

Page 1002

"The extraordinary remedy provided by c. 211, s. 3, should be invoked only when appellate review is otherwise unavailable." Hahn v. Planning Bd. of Stoughton, 403 Mass. 332 , 335 (1988). The petitioner could have sought and obtained appellate review of the judges' actions. Moreover, the Superior Court docket entries reflect his filing of notices of appeal. As a result, we allow the motion of the MBTA to join in the motion of the city to dismiss the petitioner's appeal from the judgment of the single justice, and we allow that motion to dismiss.

So ordered.

The case was submitted on briefs.

Mary M. Logalbo, William A. Mitchell, Jr, & Jonathan R Feltner for Massachusetts Bay Transportation Authority.

Samuel Jones, pro se.


[Note 1] City of Boston.