JAMES BOONE vs. COMMONWEALTH.

The petitioner, James Boone, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm.

In 1980, Boone pleaded guilty to four counts of murder in the second degree, for which he was sentenced to four concurrent life sentences with the possibility of parole. [Note 1] In April 2022, he appeared pro se before the Massachusetts Parole Board (board) for a review hearing. [Note 2] The board denied parole with a review to be scheduled one year after the hearing, i.e., in April 2023. In its written decision, the board stated, among other things, that Boone "ha[d] not demonstrated a level of rehabilitative progress that would make his release compatible with the welfare of society." The board also noted that Boone "appeared very overwhelmed by the parole hearing process"; that the board "would like to review a current mental health evaluation and [Boone's] mental health records"; and that it would like Boone to be represented by an advocate at his next hearing. To that end, on the same date that the board issued its decision, it also issued a referral to provide counsel to the Committee for Public Counsel Services, which subsequently assigned counsel.

Boone, now represented by counsel, filed, in the Superior Court, a motion for funds pursuant to G. L. c. 261, §§ 27A-27G, the indigent court costs law, for

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purposes of having an expert conduct the mental health evaluation requested by the board. A judge denied the motion, on May 11, 2023, on the basis that the court did not have the authority to grant expert funds in the circumstances, noting that the indigent court costs law only authorizes the payment of public funds to cover costs and fees of indigent defendants in "court proceedings," not in proceedings before executive agencies like the board. The judge also denied Boone's subsequent motion for reconsideration on June 28, 2023.

Boone then appealed to a single justice of the Appeals Court, pursuant to G. L. c. 261, § 27D. His notice of appeal was filed on July 10, 2023, and his appeal was entered in the Appeals Court on July 17, 2023. The following day, a single justice stayed the appellate proceedings to await a decision in another then-pending case in the Appeals Court -- Commonwealth vs. Hastings, A.C. No. 2023-P-0105 -- that involved a similar issue. [Note 3] The single justice's order also provided that Boone was free to move to vacate the stay if he did not want to await a decision in the Hastings case. Boone subsequently filed a motion to lift the stay, and on November 3, 2023, a different single justice allowed the motion and considered Boone's appeal. On the basis that Boone had not timely appealed from the trial judge's initial May 11, 2023, order, the single justice concluded that the appeal was not properly before the court and dismissed it for want of jurisdiction. [Note 4]

Meanwhile, while Boone's appeal was pending in the Appeals Court, two other relevant events occurred: this court granted an application for direct appellate review in the Hastings case in September 2023, and Boone filed his G. L. c. 211, § 3, petition in the county court on October 17, 2023. In the petition, he stated that his appeal from the trial court's denial of his motion for funds had been "languishing" in the Appeals Court, and he asked this court either to order the trial court to authorize funds for the mental health evaluation or to reserve and report the case to the full court to be joined with the Hastings case. The single justice denied the petition on November 7, 2023 (i.e., after the Appeals Court single justice had dismissed Boone's appeal in the Appeals Court).

In his appeal from the single justice's judgment, Boone focuses entirely on the merits of his petition, notwithstanding the fact that the single justice did not reach the merits. Nowhere does Boone address why relief pursuant to G. L. c. 211, § 3, is appropriate, i.e., he raises no argument in his appeal that he has no adequate alternative remedy or that his case "presents the type of exceptional matter that requires the court's extraordinary intervention." Commonwealth v. Fontanez, 482 Mass. 22, 25 (2019). In cases such as this one, where the single justice "exercises discretion not to reach the merits of a petition, the appeal to the full court 'is strictly limited to a review of that ruling,' Commonwealth v. Samuels, 456 Mass. 1025, 1027 n.1 (2010), and the full court asks only whether

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the single justice abused his or her discretion in making that decision." Commonwealth v. Rodriguez, 484 Mass. 1047, 1049 (2020).

It is clear that Boone had an adequate alternative remedy, one that, in fact, he has already pursued: an appeal pursuant to G. L. c. 261, § 27D, to a single justice of the Appeals Court. That he did not receive the relief in that court that he desired, and that he did not receive it as quickly as he would have liked, does not render the relief inadequate or entitle him to relief pursuant to G. L. c. 211, § 3. See, e.g., Tavares v. Commonwealth, 481 Mass. 1044, 1044 (2019), and cases cited. "Relief under G. L. c. 211, § 3, is properly denied where there are adequate and effective routes other than c. 211, § 3, by which the petitioning party may seek relief." Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996). That the Hastings case involves a similar issue to the one presented in Boone's case does not alter this or obviate the fact that Boone had an adequate alternative remedy. [Note 5]

The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on briefs.

Melissa Allen Celli for the petitioner.