Lykus v. Commonwealth

The appellant, who is currently incarcerated at the Bay State Correctional Center, sought relief pursuant to G. L. c. 211, § 3 (1994 ed.), from the denial in the Superior Court of his “motion to correct illegal sentence.” A single justice of this court denied relief. This matter is not within S.J.C. Rule 2:21, 421 Mass. 1303 (1995), because the appellant is seeking postconviction relief, not relief from an interlocutory order of a trial court.

The appeal lacks merit in any event. Because the appellant was convicted of a capital offense, and his direct appeal has already been decided by this court, Commonwealth v. Lykus, 367 Mass. 191 (1975), S.C., 406 Mass. 135 (1989), he may pursue an appeal from the denial of his motion only by leave of a single justice of this court. See G. L. c. 278, § 33E (1994 ed.). See also Commonwealth v. Ambers, 397 Mass. 705, 710 n.6 (1986). To the extent that the single justice denied relief under G. L. c. 211, § 3, he did not abuse his discretion or commit an error of law. To the extent that he denied leave to appeal under the “gatekeeper” provision of § 33E, that decision is final and unreviewable. Commonwealth v. Ambers, supra at 710-711. Because the appellant is not entitled to relief there is no reason to consider his petition for habeas corpus ad testificandum.

Appeal dismissed.