Kyricopoulos v. Richardson
| Decision Date | 13 February 1991 |
| Citation | 566 N.E.2d 101,409 Mass. 1002 |
| Parties | James P. KYRICOPOULOS v. Royden C. RICHARDSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James P. Kyricopoulos, pro se.
James M. Shannon, Atty. Gen., and Jill S. Plancher, Asst. Atty. Gen., for defendant.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
RESCRIPT.
James P. Kyricopoulos (petitioner) appeals from the judgment of a single justice of this court denying him relief under G.L. c. 211, § 3 (1988 ed.), and Mass.R.Crim.P. 30(c)(8), 378 Mass. 900 (1979). The petitioner sought from the single justice "leave to prosecute an appeal" from two orders entered in the Superior Court denying his petition for a writ of habeas corpus and denying his subsequent petition for "habeas corpus for appeal." It appears that the latter petition, as well as the petition to the single justice, was prompted by the petitioner's discovery that his appeal from the denial of his petition for a writ of habeas corpus had not been entered in the Appeals Court.
Decisions of a single justice denying relief under G.L. c. 211, § 3, will not be disturbed on appeal absent clear error of law or abuse of discretion. Caggiano v. Commonwealth, 406 Mass. 1004, 1005, 550 N.E.2d 389 (1990). Neither occurred here.
First, the petitioner did not need leave from the single justice to prosecute the appeal. Second, to the extent that the petitioner sought intervention by the single justice to facilitate the appeal, a "party is entitled to the exercise of the court's general superintendence powers under G.L. c. 211, § 3, 'if no other remedy is expressly provided.' " Caggiano v. Commonwealth, supra. The petitioner has not demonstrated that he has taken all of the steps needed to perfect his appeal nor demonstrated that he has exhausted available means of correcting any omission in the Superior Court or Appeals Court which may have resulted in his appeal not being entered in the Appeals Court. Cf. Zieminski v. Berkshire Div. of the Probate & Family Court Dep't, 408 Mass. 1008, 1009, 563 N.E.2d 690 (1990).
Moreover, it appears from other papers submitted with the petition to the single justice that the underlying basis for the petition for a writ of habeas corpus consisted of claims that could have been asserted in an appeal from the petitioner's conviction (an appeal which petitioner says has not been perfected) or in a motion for a new trial under Mass.R.Crim.P. 30, 378...
To continue reading
Request your trial
-
Campiti v. Com.
...of a single justice need not be disturbed. Barnoski v. Commonwealth, 413 Mass. 1007, 603 N.E.2d 915 (1992). Kyricopoulos v. Richardson, 409 Mass. 1002, 566 N.E.2d 101 (1991). The single justice's discretionary power of review under G.L. c. 211, § 3, is extraordinary and will be exercised on......
-
Forte v. Com.
...454, 455, 630 N.E.2d 596 (1994), citing Barnoski v. Commonwealth, 413 Mass. 1007, 603 N.E.2d 915 (1992), and Kyricopoulos v. Richardson, 409 Mass. 1002, 566 N.E.2d 101 (1991). "The single justice's discretionary power of review under G.L. c. 211, § 3, is extraordinary and will be exercised ......
-
Barnoski v. Com.
...absent clear error of law or abuse of discretion, a decision of a single justice will not be disturbed. Kyricopoulos v. Richardson, 409 Mass. 1002, 566 N.E.2d 101 (1991). For the extraordinary relief sought under G.L. c. 211, § 3, the petitioner must show "both a substantial claim of violat......
-
Forte v. Com.
...will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law"); Kyricopoulos v. Richardson, 409 Mass. 1002, 566 N.E.2d 101 (1991). While we do not condone the delay in the underlying appeal caused by the Commonwealth's repeated requests for ex......