DIGGS v. COMMONWEALTH (2003)

Following a jury trial, the petitioner was convicted of receiving a stolen motor vehicle, assault and battery, and reckless operation of a motor vehicle.   His convictions were affirmed.  Commonwealth v. Diggs, 49 Mass.App.Ct. 1105, 726 N.E.2d 992, cert. denied, 531 U.S. 950, 121 S.Ct. 353, 148 L.Ed.2d 284 (2000).¹  Thereafter, the petitioner made various unsuccessful legal challenges to his convictions in the Superior Court, including multiple motions for a new trial;  his single appeal from various adverse rulings was dismissed for lack of prosecution.   Subsequently, he filed a motion that a single justice of this court treated as a G.L. c. 211, § 3, petition and denied.   There was no error.

 The petitioner raises issues that either were, or could have been, presented to the Superior Court in a motion for a new trial, or to the Appeals Court, either on direct appeal or on appeal from the denial of one or more of his posttrial motions.²  “We have emphasized that relief under G.L. c. 211, § 3, is extraordinary and may not be sought as a substitute for normal appellate  review.  Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977).   Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied.”  Diggs v. Commonwealth, 429 Mass. 1019, 1019, 711 N.E.2d 880 (1999), quoting Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800, 802, 501 N.E.2d 1151 (1986).

Judgment affirmed.

FOOTNOTES

1.   In addition, while his direct appeal was pending, the petitioner filed a petition for relief pursuant to G.L. c. 211, § 3, the denial of which was affirmed by this court.  Diggs v. Commonwealth, 429 Mass. 1019, 711 N.E.2d 880 (1999).   That petition is not at issue here.

2.   To the extent that the petitioner contends that either of his counsel was ineffective, such claims could have been raised in a motion or motions pursuant to Mass. R.Crim. P. 30, 378 Mass. 900 (1979).   Bates v. Commonwealth, 434 Mass. 1019, 751 N.E.2d 843 (2001).   On the record before the single justice, the petitioner failed to demonstrate “both a substantial claim of violation of a substantive right and that the violation could not have been remedied ․ by other available means.”   Dempsey v. District Attorney for the Suffolk Dist., 429 Mass. 1014, 1015, 710 N.E.2d 972 (1999), quoting Gorod v. Tabachnick, 428 Mass. 1001, 1001, 696 N.E.2d 547, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998).   Indeed, “the relief he would have obtained, if his claim[s] were meritorious, is the same relief that his petition requests.”  Dempsey v. District Attorney for the Suffolk Dist., supra.

RESCRIPT.