Fuentes v. Commonwealth

767 N.E.2d 549, 436 Mass. 1011, 2002 Mass. LEXIS 287

Opinion

The petitioner appeals from a judgment of a single justice of this court denying the relief that he sought in a document entitled “Petition for Review to Stay Sentence; Vacate: and Resentence: According to Principles of Plea-Agreement and Grant Credit for Time Serve.” The single justice treated the document as a petition under G. L. c. 211, § 3, and denied it without a hearing. We affirm.

The case was submitted on briefs. Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth. John Fuentes, pro se.

Relief under G. L. c. 211, § 3, is unavailable where there are alternative routes by which the petitioner may adequately seek relief. E.g., Sabree v. Commonwealth, 432 Mass. 1003 (2000); Pavilonis v. Commonwealth, 394 Mass. 1001, 1002 (1985) (where the plaintiff failed to appeal from denial of relief under rules of appellate procedure, G. L. c. 211, § 3, relief inappropriate). It is settled that it is the petitioner’s burden to create a record “demonstrating] the absence or inadequacy of other remedies,” Callahan v. Superior Court, 432 Mass. 1023, 1023 (2000), as well as a “substantial claim of violation of a substantive right.” Gorod v. Tabachnick, 428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003 (1998). The petitioner’s unfocused pro se filings establish no such record. The single justice neither abused his discretion nor made a clear error of law in denying the petition.¹

Judgment affirmed.

1 The fact that petitioner is acting pro se is without significance. In this respect he is held to the same standards to which litigants represented by counsel are held. Solimine v. Davidian, 422 Mass. 1002 (1996).