Home WILLIAM ENGLEHART vs. COMMONWEALTH.

438 Mass. 1005

December 3, 2002

William Englehart filed a petition in the county court pursuant to G. L. c. 211, § 3. A single justice of this court denied the petition without a hearing, and Engleheart appealed. We affirm.

"Relief under G. L. c. 211, § 3, is available only in extraordinary circumstances." Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136 , 137 (2001). It is not available where the petitioning party has or had "adequate and effective avenues other than G. L. c. 211, § 3, by which to seek and obtain the requested relief." Lanoue v. Commonwealth, 427 Mass. 1014 , 1015 (1998), quoting Hicks v. Commissioner of Correction, 425 Mass. 1014 , 1014-1015 (1997).

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Englehart failed to demonstrate that the errors he claimed in the proceedings below could not adequately have been remedied through the normal appellate process. Englehart could have pursued an appeal in the Appeals Court from the Superior Court decision he challenged in his petition. He chose not to do so until after the single justice rendered his decision on the petition. [Note 1] See, e.g., Sibinich v. Commonwealth, 436 Mass. 1008 , 1009-1010 (2002), quoting Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800 , 802 (1986) (relief under G. L. c. 211, § 3, "may not be sought as a substitute for normal appellate review").

Englehart also failed to develop a factual record before the single justice substantiating his claims of error, omitting crucial portions of the lower court record from his petition. See, e.g., Lu v. Boston Div. of the Hous. Court Dep't, 432 Mass. 1005 , 1005 (2000), quoting Gorod v. Tabachnick, 428 Mass. 1001 , 1001, cert. denied, 525 U.S. 1003 (1998) (petitioner is obliged to create record, including "parts of the lower court record necessary to substantiate [the] allegations").

The single justice's decision to deny the petition for extraordinary relief was neither an abuse of discretion nor a clear error of law.

Judgment affirmed.

The case was submitted on briefs.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

William Englehart, pro se.


FOOTNOTES

[Note 1] Englehart waited almost a year after the denial by the Superior Court judge to file his notice of appeal in the Appeals Court. The Appeals Court dismissed the appeal as untimely.