445 Mass. 1022

December 12, 2005

Lorenzo Quintin Scott appeals from a judgment of a single justice of this court denying his petition, pursuant to G. L. c. 211, § 3, without a hearing. We affirm.

Relief under G. L. c. 211, § 3, is properly denied where, as here, "there are other routes by which the petitioning party may adequately seek relief." Sabree v. Commonwealth, 432 Mass. 1003, 1003 (2000). It is the petitioner's burden to allege and demonstrate the absence or inadequacy of other remedies. See, e.g., Russell v. Nichols, 434 Mass. 1015, 1016 (2001).

Here, the petitioner cannot meet his burden. He has, in fact, already obtained appellate review of the judgments against him in the civil actions that are the subject of his petition. See Scott v. District Attorney for the Norfolk Dist., 63 Mass. App. Ct. 1113 (2005). He filed the petition that is the subject of this appeal even before a decision was rendered by the Appeals Court on his direct appeal. The petitioner does not allege, much less demonstrate, that the remedy of ordinary appellate review by the Appeals Court was inadequate. "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001 (2005).

The single justice neither abused his discretion nor committed any other error of law in denying the petition under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on briefs.

Lorenzo Q. Scott, pro se.

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


445 Mass. 1022

December 13, 2005

The defendant, Raul Robles, Jr., was convicted of murder in the first degree and other crimes, and we affirmed the convictions. Commonwealth v. Robles, 423 Mass. 62 (1996). Robles subsequently filed in the Superior Court two motions for a new trial, both of which were denied. Pursuant to the gatekeeper provision of G. L. c. 278, § 33E, Robles applied to a single justice of this court for leave to appeal from the denial of his second motion. The single justice denied the application on the separate and independent grounds that it was untimely, Mains v. Commonwealth, 433 Mass. 30, 36 n.10 (2000), and

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that it presented no "new and substantial" issue warranting leave to appeal. [Note 1] Robles appeals from the single justice's ruling.

The Commonwealth has moved to dismiss Robles's appeal. It is well established that "the decision of the single justice, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is 'final and unreviewable.' " Commonwealth v. Herbert, ante 1018, 1018 (2005), quoting Commonwealth v. Perez, 442 Mass. 1019, 1019 (2004). As we stated in Commonwealth v. Scott, 437 Mass. 1008, 1008 (2002), "[t]he defendant's claim that he was deprived of the effective assistance of appellate counsel on his direct appeal ignores not only the nature of plenary review, see G. L. c. 278, § 33E, but also the single justice's determination as gatekeeper that the claim of ineffective assistance was not substantial." Robles cannot appeal to the full court.

Appeal dismissed.

The case was submitted on briefs.

Raul Robles, pro se.


[Note 1] Robles's claims included a claim of ineffective assistance of counsel by the attorney who represented him in his direct appeal. He was not represented by counsel when he filed his first and second motions for a new trial. The single justice stated: "The defendant has not raised any issue that could not have been raised during his direct appeal or, at the latest, in his first motion for new trial. As such, none of the issues qualifies as 'new.' Nor do they appear to be substantial."