Hicks v. Commissioner of Correction

Relief under G. L. c. 211, § 3, is not available where the petitioner has or had adequate and effective avenues other than G. L. c. 211, § 3, by which to seek and obtain the requested relief. Martineau v. Department of Correction, 423 Mass. 1007 (1996), and cases cited. Maza v. Commonwealth, 423 Mass. 1006 (1996), and cases cited. In this case, the relief sought by the petitioner could have been obtained in an appeal from the denial of his habeas corpus petition. Despite having timely filed an appeal, the record indicates that he failed to perfect his appeal in the Appeals Court. Subsequently, the petitioner could have appealed to a panel of the Appeals Court from the Appeals Court single justice’s denial of his motion for permission to have his appeal docketed late. Maza, supra, and cases cited. Having failed to pursue those remedies, he was not entitled to relief under G. L. c. 211, § 3. See Martineau, supra; Matthews v. D’Arcy, 422 Mass. 1012 (1996); Adams v. Cumberland Farms, Inc., 420 Mass. 807 (1995). Although the petitioner has been acting pro se, he is held to the same standards as litigants who are represented by counsel. Maza, supra, and cases cited.

The case was submitted on briefs. Malcolm Hicks, pro se. Ellyn H. Lazar, Assistant Attorney General, for the Commonwealth.

Were we to consider the merits of the petitioner’s claims, we would conclude that the single justice did not err or abuse his discretion in denying the petition. See Martineau, supra; Greco v. Suffolk Div. of the Probate & Family Court Dep’t, 418 Mass. 153, 156 (1994). Even if the Governor’s attempted commutation of the petitioner’s sentence was unlawful, it does not necessarily follow, as the petitioner claims, that he is entitled to have his sentence transformed in some other manner. There is no indication in the record, nor does the petitioner assert, that the Governor intended to pardon him outright or to lessen the offense for which he was convicted to manslaughter. Cf. Commonwealth v. Arsenault, 361 Mass. 287, 292 (1972) (commutation does not disturb conviction but simply remits portion of sentence). Nor is there any indication that the Governor intended that the petitioner be paroled at any specific time.

Judgment affirmed.