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SJC-12408

            FRANKLIN B. ABERNATHY   vs.   COMMONWEALTH.


                          May 24, 2018.


   Supreme Judicial Court, Superintendence of inferior courts.


     Franklin B. Abernathy appeals from a judgment of the county
court denying, without a hearing, his petition for relief under
G. L. c. 211, § 3. In 2014, Abernathy's convictions of breaking
and entering during the daytime with intent to commit a felony
and of possession of burglarious tools were affirmed by the
Appeals Court, and we denied further appellate
review. Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117,
S.C., 469 Mass. 1101 (2014). Abernathy filed a motion for a new
trial, claiming that the indictments were defective. That
motion was denied; the denial was affirmed by the Appeals Court,
and we denied further appellate review. Commonwealth
v. Abernathy, 91 Mass. App. Ct. 1119, S.C., 478 Mass. 1103
(2017). In addition, Abernathy filed his G. L. c. 211, § 3,
petition, which was denied while the latter application for
further appellate review was pending. We affirm the denial of
relief.

     Abernathy has filed a memorandum and appendix pursuant to
S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires a party challenging an interlocutory ruling of the
trial court to "set forth the reasons why review of the trial
court decision cannot adequately be obtained on appeal from any
final adverse judgment in the trial court or by other available
means." That rule does not apply, as Abernathy is not
challenging an interlocutory ruling of the trial court.
Nonetheless, it is clear on the record that Abernathy had, and
pursued, an adequate remedy in the ordinary process, namely, his
appeal from the denial of his motion for a new trial. "Our
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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." Bishay v. Land Ct. Dep't of the Trial
Court, 477 Mass. 1032, 1033 (2017), quoting Fennick
v. Kittredge, 460 Mass. 1012, (2011). 1

                                   Judgment affirmed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Franklin B. Abernathy, pro se.




     1 Abernathy also contends that a systemic problem exists in
the justice system. "This claim is beyond the scope of rule
2:21, which concerns only the alternative remedies, if any,
available to the particular petitioner. Moreover, the single
justice did not decide the petition on the merits or report the
case to the full court to address [the] claim of systemic error,
and we are loath to second-guess [his] discretion in this
respect." Benjamin B. v. Commonwealth, 478 Mass. 1012, 1013 n.3
(2017), citing Jackson v. Commonwealth, 437 Mass. 1008, 1009
(2002).
