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SJC-11733

 WILLIAM M. SHIPPS, JR.   vs. DISTRICT ATTORNEY FOR THE NORFOLK
                             DISTRICT.


                          July 6, 2015.


Declaratory Relief.   Practice, Criminal, Capital case, Sentence.


     William M. Shipps, Jr., filed a complaint in the county
court in 2014, pursuant to G. L. c. 231A, seeking a declaration
that his sentences for murder in the first degree under G. L.
c. 265, § 2, as amended by St. 1979, c. 488, § 2, which were
imposed thirty years earlier, are unconstitutional. A single
justice of this court dismissed the complaint. We affirm.

     In 1984, Shipps was convicted of two indictments charging
murder in the first degree and other crimes. He was sentenced
on the murder convictions to two consecutive life terms in State
prison without the possibility of parole, and to four concurrent
life terms on the remaining convictions. Commonwealth
v. Shipps, 399 Mass. 820 (1987). Thereafter, Shipps filed three
motions seeking a new trial in the Superior Court, all of which
were denied. Commonwealth v. Shipps, 440 Mass. 1018, 1019
(2003), cert. denied, 541 U.S. 910 (2004). A single justice of
this court denied leave to appeal from the ruling on the third
motion, pursuant to the "gatekeeper" provision of G. L. c. 278,
§ 33E, and we dismissed Shipps's appeal from that ruling. Id.

     1. In 2014, Shipps filed a complaint for declaratory
relief in the county court, seeking a determination that the
imposition of his sentence (indeed, any sentence at all) for his
convictions of murder in the first degree violated the ex post
facto and due process clauses of the United States Constitution
because the sentencing statute applicable at the time of his
offenses, G. L. c. 265, § 2, as amended by St. 1979, c. 488,
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§ 2, provided for no penalty other than death, which by the time
of his offenses had been ruled unconstitutional. See District
Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980).
It is well established that declaratory relief ordinarily is not
available in the context of pending criminal cases. Id. at 659.
Similarly, a complaint seeking declaratory relief may not be
used postconviction to avoid the gatekeeper provision of G. L.
c. 278, § 33E, or to challenge the legality of a sentence by
contesting the constitutionality of the statute under which the
plaintiff (the defendant in the underlying criminal case) was
sentenced. Napolitano v. Attorney Gen., 432 Mass. 240, 242-243
(2000). "[T]he proper way for [the plaintiff] to challenge the
legality of his sentences was by way of a postconviction motion
in the trial court." Id. at 243 n.5. See Commonwealth
v. Ambers, 397 Mass. 705, 710 n.6 (1986). "[N]o matter how a
defendant chooses to label his claim," Commonwealth v. Shipps,
440 Mass. at 1019, and regardless of the procedural route
employed, he may not "circumvent the gatekeeper provision by
filing [an action] in the county court in the first
instance." Tyree v. Commonwealth, 449 Mass. 1034, 1034 (2007),
cert. denied, 554 U.S. 926 (2008) (petition for writ of habeas
corpus), citing Napolitano v. Attorney Gen., supra (declaratory
judgment action). This appeal does not present an extraordinary
circumstance "justifying declaratory relief to prevent
disruption of the orderly administration of criminal
justice." District Attorney for the Suffolk Dist. v. Watson,
381 Mass. at 660. Contrast Diatchenko v. District Attorney for
the Suffolk Dist., 466 Mass. 655, 657 n.5 (2013), S.C., 471
Mass. 12 (2015) (on reservation and report court considered
constitutionality of sentence, noting constitutional
significance and impact of case for administration of justice,
in light of number of past, present, and future defendants whose
sentences would be affected).

     2. The plaintiff would fare no better even if we were to
consider his claims on the substantive merits, as did the single
justice. The single justice's memorandum of decision, which we
accept, adequately and concisely addressed and rejected the
plaintiff's meritless contention that persons, like him, who
committed murder in the first degree between October 28, 1980 --
the date of our decision in District Attorney for the Suffolk
Dist. v. Watson, supra -- and January 1, 1983 -- the effective
date of G. L. c. 265, § 2, as amended by St. 1982, c. 544, § 3
-- are subject to no punishment at all for their offenses.


                                   Judgment affirmed.
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     William M. Shipps Jr., pro se.
     Marguerite T. Grant, Assistant District Attorney, for the
Commonwealth.
