Judicial Court, Superintendence of inferior courts. Practice,
Criminal, Appeal. Habitual Offender.
Ricardo Barbosa, pro se.
Michael McGee, Assistant District Attorney, for the
petitioner, Ricardo Barbosa, was convicted by a Superior
Court jury of rape, pursuant to G. L. c. 265, § 22 (b),
and, in a separate proceeding, of being a habitual offender
pursuant to G. L. c. 279, § 25 (b). Shortly after he was
convicted, he filed, in the county court, both a petition
pursuant to G. L. c. 211, § 3, and an application for
"direct appellate review" purportedly under G. L.
c. 278, § 33E. In both the petition and the application,
Barbosa raised issues related to the habitual offender
conviction. He argues, for example and among other things,
that he has not been "convicted [two] times
previously" of any of the crimes enumerated in the
statute and that, more generally, the statute imposes unfair
and unconstitutional sentencing requirements. A single
justice denied both the petition and the application without
a hearing, and Barbosa appeals.
the petition nor the application is the proper means for
Barbosa to get the review that he seeks of his conviction. As
to the G. L. c. 211, § 3, petition, the issues raised
are ones for which Barbosa has an adequate alternative remedy
-- he can raise them in a direct appeal. "Relief under
G. L. c. 211, § 3, is properly denied where there are
adequate and effective routes other than c. 211, § 3, by
which the petitioning party may seek relief." Greco
v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996).
the G. L. c. 278, § 33E, application, as best we can
discern from his materials it appears that Barbosa filed the
application in the county court because he interprets that
statute, as amended in 2012, see St. 2012, c. 192,
§§ 43, 44, to require appeals from habitual
offender convictions pursuant to G. L. c. 279, § 25 (b),
to be entered directly in this court and heard by this court
in the first instance. Even if that were correct -- and we
express no view on whether it is, as further explained below
-- the process for the direct appeal is not through an
application with the single justice, but rather through the
eventual entry of the appeal directly in the full court once
the record has been assembled in the trial court. The single
justice, therefore, did not err in denying both the petition
and the application.
said this, we recognize that there is an open question
whether a direct appeal from a conviction pursuant to G. L.
c. 279, § 25 (b), should be entered in the Appeals Court
or in the Supreme Judicial Court in the first instance. That
particular question is not before us in this case, but rather
is a question to be decided in Barbosa's direct appeal.
As to that appeal, the trial court docket indicates that he
has already filed timely notices of appeal in the trial
court,  and the record for that appeal is in the
process of being assembled by the trial court clerk. In order
to avoid any further confusion, and without prejudging the
answer to the question, we direct the clerk of this court to
inform the trial court clerk that, once the record in
Barbosa's direct appeal is assembled, notice of the
assembly, the docket entries, and the transcript are to be
transmitted directly to this court, and the case shall be
entered directly here. We will therein consider -- in
addition to the substantive legal issues raised by Barbosa as
to his convictions -- the procedural question whether, in
future cases, direct appeals from habitual offender
convictions pursuant to G. L. c. 279, § 25 (b), must be
entered directly in this court or whether, instead, such
appeals shall be entered in the Appeals Court in the first
instance. See G. L. c. 211A, § 10 (giving Appeals Court
concurrent jurisdiction over all criminal appeals except
appeals from convictions of murder in the first degree).
judgment of the single justice denying Barbosa's G. L. c.
211, § 3, petition, and his G. L. c. 278, § 33E,
application is affirmed.
 In September 2016, during the course
of the trial court proceedings but before the trial itself,
Barbosa attempted to file in the county court another
petition pursuant to G. L. c. 211, § 3, in which he
asked the court to dismiss the indictments against him on the
basis of pretrial delay. Because Barbosa failed to tender the
filing fee or an affidavit of indigency, that petition was
returned to him without being entered (i.e., the petition was
not docketed and no case was opened). Although it is not
entirely clear from the record before us, it appears that
when Barbosa filed the G. L. c. 211, § 3, petition, and
the G. L. c. 278, § 33E, application that are currently
before us, he also included the petition that he had
previously attempted to file in September 2016. To the extent
that the issues raised in that petition were meant to be a
part of the current petition, those issues, which relate to a
delay in the trial court proceedings, are now moot, Barbosa
having been tried and convicted.
 In addition to filing a timely notice
of appeal from the convictions, Barbosa also filed a motion
for a new trial, which was denied, and a timely notice ...