MOCKS v. COMMONWEALTH (1998)

The petitioner appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief filed under G.L. c. 211, § 3.

The petitioner claims that he has been denied effective assistance of counsel for purposes of his direct appeal because, among other things, counsel allegedly failed to consult with the petitioner in the course of preparing his appellate brief and allegedly failed to provide the petitioner with an opportunity to review the brief prior to filing it in the Appeals Court.   The petitioner also claims that he has been denied his right to counsel since the Appeals Court deemed him to be proceeding pro se following the withdrawal (at the petitioner's request) of his appellate counsel.   The petitioner requested that the single justice appoint him counsel, and specified a particular counsel whom he preferred.

 Relief under G.L. c. 211, § 3, is not available where the petitioner has adequate and effective avenues other than G.L. c. 211, § 3, by which to seek and obtain the requested relief.  Hicks v. Commissioner of Correction, 425 Mass. 1014, 1014-1015, 681 N.E.2d 274 (1997), and cases cited.   The petitioner has not met this requirement for at least two reasons.   His conclusory and unamplified statements in his brief that “the claims ․ surrounding this case made it impossible to seek any other adequate form of remedy”;  and “that he has clearly established and met the requirements of Exceptional Circumstances ” are inadequate (emphasis in original).   Moreover, the fact that counsel was again assigned to represent him, after the single justice denied the request at issue here, demonstrates that a petition under G.L. c. 211, § 3, was not his only adequate and effective source of relief.

 Under no circumstances does the petitioner have a constitutional right to any particular court-appointed counsel.  Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983), and cases cited.

Judgment affirmed.

RESCRIPT.