Richard Zagranski, pro se.
Badway, Assistant Attorney General, for the Commonwealth.
Judicial Court, Superintendence of inferior courts.
Practice, Criminal, Capital case.
petitioner, Richard Zagranski, was convicted of murder in the
first degree in 1989. We affirmed the conviction. See
Commonwealth v. Zagranski, 408
Mass. 278 (1990). In 2012, Zagranski filed a motion for
postconviction relief claiming that he received ineffective
assistance of trial and appellate counsel and seeking, among
other things, an order granting him a new trial, an order
vacating his conviction, or an order reducing the degree of
the offense. He set forth several bases for the ineffective
assistance claim including, as is relevant here, that his
counsel had a conflict of interest that impaired
counsel's ability to provide effective
representation. The postconviction motion was denied.
Zagranski then filed, in the county court, a petition for
leave to appeal pursuant to G. L. c. 278, § 33E, in
which he continued to press the conflict of interest
argument. A single justice denied the petition, in August,
2013, as well as Zagranski's subsequent motion for
February, 2016, Zagranski filed a "Petition for
Extraordinary Relief Pursuant to [G. L. c.] 211, § 3,
" in the county court in which he claimed that the
transcript of the hearing at which the trial judge considered
the conflict of interest issue was not a part of the record
that was before this court when it considered his direct
appeal. In Zagranski's view, the court was thus not able
to fulfil its duty pursuant to G. L. c. 278, § 33E, to
review "the whole case" because the court did not
have a complete record of the trial court proceedings. A
single justice denied the petition on the bases that
Zagranski has an adequate alternative remedy -- to seek
postconviction relief in the trial court -- and that his
petition did not, in any event, raise a "new and
substantial" issue that would entitle him to review
pursuant to G. L. c. 278, § 33E. Zagranski has appealed
from the single justice's denial of his petition; the
Commonwealth has moved to dismiss the appeal.
decision of a single justice denying leave to appeal under G.
L. c. 278, § 33E, is final and unreviewable, and
Zagranski cannot circumvent that by seeking relief pursuant
to G. L. c. 211, § 3. See Cook v.
Commonwealth, 451 Mass. 1008, 1009 (2008), citing
Leaster v. Commonwealth, 385 Mass.
547, 549 (1982). See also Napolitano v.
Attorney Gen., 432 Mass. 240, 241 (2000) (gatekeeper
decision pursuant to G. L. c. 278, § 33E, cannot be
appealed to the full court nor collaterally attacked on the
merits through other means). Zagranski nonetheless argues
that seeking postconviction relief in the trial court is
illogical because what he is asking for is not a new trial or
other action in the trial court, but rather a new appeal
because, in his view, his direct appeal did not get the
"whole case" review to which he is entitled. At its
core, however, Zagranski's argument remains one of
ineffective assistance of counsel, and that issue should
generally first be raised in a motion for postconviction
relief in the trial court, so that an adequate record can be
developed. Commonwealth v. Zinser,
446 Mass. 807, 810-812 (2006), and cases cited. We do not
discount the possibility that he may be entitled to relief,
but he should proceed in the first instance in the trial
court, not in this court.
single justice did not err or abuse her discretion in denying
relief under G. L. c. 211, § 3.
case was submitted on the papers filed, accompanied by a
memorandum of law.
 The conflict of interest issue was
considered by the trial judge at the time of trial, but the
fact that Zagranski did not raise it in his direct appeal did
not preclude his raising it in his motion for a new trial
where the same counsel represented him both at trial and in
the direct appeal. See Commonwealth v.
Edgardo, 426 Mass. 48, 49-50 (1997), and cases
 Zagranski's petition for a writ of
certiorari to the United States Supreme Court was also
 We think it worth noting that
Zagranski has previously raised the conflict of interest
issue in his earlier motion for postconviction relief. It
will be incumbent on him to show that his current argument
regarding the record is not simply an attempt to make an
end-run around the denial of his earlier motion ...