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SJC-11787

            CHRISTOPHER S. DOYLE   vs.    COMMONWEALTH.


                          July 6, 2015.


Supreme Judicial Court, Superintendence of inferior
     courts. Habeas Corpus. Practice, Criminal, Sentence,
     Double jeopardy, Duplicative convictions, Assistance of
     counsel.


     Christopher S. Doyle (petitioner) appeals from a judgment
of a single justice of this court summarily denying relief on
his petition filed pursuant to G. L. c. 211, § 3. We affirm.

     After a jury trial, the petitioner was convicted of
breaking into a depository in the nighttime with intent to
commit a felony, in violation of G. L. c. 266, § 16; possession
of burglarious tools, in violation of G. L. c. 266, § 49; and
malicious destruction of property, in violation of G. L. c. 266,
§ 127. The Appeals Court affirmed the first two convictions and
reversed the malicious destruction of property conviction.
See Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 393 (2013). A
Superior Court judge thereafter granted a motion to dismiss the
petitioner's petition for a writ of habeas corpus. There is no
indication on the trial court docket that he appealed from that
ruling. Instead, the petitioner filed his G. L. c. 211, § 3,
petition in the county court requesting that his convictions be
vacated and that he immediately be released from confinement. 1
The petition alleged that the Superior Court judge erred in

     1
       The petition for a writ of habeas corpus is not in the
record. The Superior Court judge's memorandum of decision
suggests, however, that the issues raised in that petition are
similar to those presented in the G. L. c. 211, § 3, petition.
                                                                   2


dismissing the writ without an evidentiary hearing; that the
convictions violated his right against double jeopardy because
the same underlying conduct formed the basis for revocation of
his probation in an unrelated matter; that the convictions are
duplicative and the sentences are unlawful; and that he received
ineffective assistance of counsel at trial and on appeal.

     The single justice neither erred nor abused his discretion
in denying relief. To the extent the petition can be viewed as
seeking relief under G. L. c. 211, § 3, the errors claimed in
the petition either were or could have been raised in the
petitioner's direct appeal, or in a motion for postconviction
relief under Mass. R. Crim. P. 30, as appearing in 435 Mass.
1501 (2001). 2,3 See Englehart v. Commissioner of Correction, 453
Mass. 1007, 1007 (2009); Hicks v. Commissioner of Correction,
425 Mass. 1014, 1014-1015 (1997). Where adequate remedies
alternative to G. L. c. 211, § 3, are available, relief properly
is denied. To the extent the petition can be viewed as seeking
habeas corpus relief, it was correctly denied because it does
not involve "grounds distinct from the issues at the indictment,
trial, conviction, or sentencing stage" (citation
omitted). Glawson v. Commonwealth (No. 1), 445 Mass. 1019, 1020
(2005), cert. denied, 547 U.S. 1118 (2006). See Bates
v. Commonwealth, 434 Mass. 1019, 1020 (2001) (ineffective
assistance of counsel claims); Stewart, petitioner, 411 Mass.
566, 568-569 (1992) (sentencing structure issues); McCastle,

     2
       Although the petition raises a double jeopardy claim, the
petitioner already has been tried and convicted. Our general
superintendence power therefore need not be exercised to protect
the "constitutional right not to be tried." Ventresco v.
Commonwealth, 409 Mass. 82, 85 (1991). See Clarke v.
Commonwealth, 437 Mass. 1012, 1013 (2002). Contrast Krochta v.
Commonwealth, 429 Mass. 711, 713-714 (1999) (prior to second
trial, under G. L. c. 211, § 3, court concluded probation
revocation hearing not basis for claim of multiple prosecutions
or multiple punishments).
     3
       At oral argument, the petitioner claimed that his petition
raised arguments that his appellate attorney declined to include
in his Appeals Court brief on direct appeal of his convictions.
To the extent the petitioner claims appellate counsel failed to
comply with the mechanisms of Commonwealth v. Moffett, 383 Mass.
201, 208-209 & n.3 (1981), or otherwise rendered ineffective
assistance, the petitioner may raise such claims in a motion for
postconviction relief in the trial court.
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petitioner, 401 Mass. 1005 (1987); Commonwealth v. Deeran, 397
Mass. 136, 137-138 (1986) (postconviction double jeopardy
claim). Habeas corpus relief is not available for such claims.

     Regardless whether the petition is viewed as a petition
under G. L. c. 211, § 3, or as a petition for a writ of habeas
corpus, neither mechanism may be employed as a substitute for
the ordinary process of trial and appeal. See Aldrich,
petitioner, 468 Mass. 1013, 1014 (2014); Crowell
v. Commonwealth, 352 Mass. 288, 289 (1967) (appellate procedure
adequate to address constitutional issues). The court's
extraordinary power of general superintendence under c. 211,
§ 3, is "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." Norris v. Commonwealth, 447 Mass. 1007, 1008 (2006),
quoting Votta v. Police Dep't of Billerica, 444 Mass. 1001
(2005).

                                   Judgment affirmed.


     Christopher S. Doyle, pro se.
     Matthew T. Seras, Assistant District Attorney, for the
Commonwealth.
