Commonwealth v. Proulx

By the Court (Meade, Rubin & Henry, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

The defendant, long ago convicted of murder in the second degree, see Commonwealth v. Proulx, 23 Mass. App. Ct. 985 (1987), brought a petition in the Superior Court seeking relief in the nature of mandamus against the Commonwealth of Massachusetts, seeking to compel the production of the defendant's entire criminal case file. He contends that a copy he had was lost during a transfer from one prison to another. The Superior Court judge concluded that the defendant was not entitled to mandamus relief because the defendant alleged that he needed the case file in order to prepare a fourth motion for a new trial that would seek relief in light of recent appellate decisions related to shaken baby syndrome. See Commonwealth v. Epps, 474 Mass. 743, 763-766 (2016); Commonwealth v. Millien, 474 Mass. 417, 433-441 (2016). The judge concluded that there was nothing in the factual records of the trial indicating that the victim had been shaken. The defendant's petition, therefore, could not "conceivably lead to a legitimate fourth motion for new trial," and the judge would not issue a writ of mandamus.

The defendant timely filed a notice of appeal. The status of that appeal is pending. Several months later, the defendant brought a motion before a single justice of the Appeals Court seeking what he described as an "interlocutory ruling" to "allow him to receive the documents of his [case file]." The single justice concluded that she lacked jurisdiction, as original actions seeking mandamus must be brought in the Supreme Judicial Court or the Superior Court pursuant to G. L. c. 249, § 5. The defendant has appealed from the order of the single justice, and it is that appeal that is before us.

The motion before the single justice appears not to have been an appeal from the order of the Superior Court judge denying the petition for mandamus. Viewed as a freestanding motion to the single justice, the motion was, as the single justice concluded, not within her jurisdiction. The jurisdiction of the single justice is appellate, and an original action seeking mandamus relief must be brought in the Supreme Judicial Court or the Superior Court. See G. L. c. 249, § 5 ("A civil action to obtain relief formerly available by writ of mandamus may be brought in the supreme judicial or superior court").

The defendant argues here that the Superior Court judge should have issued a writ of mandamus and abused his discretion in denying the defendant's petition. To the extent the motion before the single justice was intended as an interlocutory appeal of the Superior Court judge's order, that order appears not to have been interlocutory. See, e.g., Briscoe v. LSREF3/AH Chicago Tenant, LLC, 481 Mass. 1026, 1027 (2019). Even if it were an interlocutory order, the appeal from the order of the single justice was not timely. See G. L. c. 231, § 118 ("A party aggrieved by an interlocutory order of a trial court justice in the superior court department . . . may file, within thirty days of the entry of such order, a petition in the appropriate appellate court seeking relief from such order"). As mentioned, the defendant had, months before, filed a notice of appeal to the full Appeals Court from the Superior Court judge's order denying mandamus relief. That remains pending. Therefore, it appears that, to the extent the motion before the single justice was intended as an interlocutory appeal, the motion was not properly before the single justice.

In any event, even were we to reach the merits of the Superior Court judge's actions in denying mandamus, we see no error. Mandamus is appropriate only where a government official refuses to comply with a "clear cut" obligation. Simmons v. Clerk-Magistrate of the Boston Div. of the Hous. Court Dep't, 448 Mass. 57, 59 (2006) ("A complaint in the nature of mandamus is a call to a government official to perform a clear cut duty" [quotation and citation omitted]). Given the affirmance on direct appeal of the defendant's conviction, he would be entitled to postconviction discovery, which is what his request for his criminal case file amounts to, only in conformity with Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001). See Montefusco v. Commonwealth, 452 Mass. 1015, 1015-1016 (2008). He would, therefore, be entitled to the case file by mandamus only if he could "establish a prima facie case for relief." Mass. R. Crim. P. 30 (c) (4). To establish a prima facie case, the defendant "must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). This is exactly the test used by the Superior Court judge in denying relief. We see no error in the judge's analysis. Therefore, the defendant was not entitled to the relief he sought.

The defendant also raises before us his claim that the sentence for his prior conviction of forcible rape of a child, G. L. c. 265, § 22A, for which his parole was revoked on the basis of his commission of the second degree murder for which he is now serving a sentence, should have begun to run at the time of revocation, rather than at the end of his life sentence. Another panel of justices of the Appeals Court previously explained to him that this claim should be brought in a separate action against the Department of Correction or the Parole Board. See Commonwealth v. Proulx, 93 Mass. App. Ct. 1123 (2018). This, therefore, is not the proper forum for raising that claim which, we understand, may have since been raised in such an action and is pending in a separate appeal, docket no. 19-P-1791.

Order of the single justice affirmed.

By the Court (Meade, Rubin & Henry, JJ.),

/s/

Clerk Entered: July 1, 2020.