CHRISTOPHER JOHNSTON vs. COMMONWEALTH.

CHRISTOPHER JOHNSTON vs. COMMONWEALTH.

449 Mass. 1026

June 21, 2007

Christopher Johnston appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. Johnston was indicted on charges of burglary and aggravated rape. Johnston's G. L. c. 211, § 3, petition challenged certain interlocutory rulings of the Superior Court, sought the disqualification of the judge who made those rulings, and requested a stay of trial court proceedings. The case is now before us on Johnston's memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). We dismiss the appeal as moot. The Superior Court docket, which we have obtained on our own initiative, indicates that after the single justice denied relief, the Commonwealth entered a nolle prosequi on each charge. This court thus cannot grant the relief Johnston is requesting. The appeal from the denial of relief under G. L. c. 211, § 3, is moot. Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. denied, 531 U.S. 1168 (2001). Moreover, Johnston was not entitled to relief under G. L. c. 211, § 3, because all of his claims concerning the interlocutory rulings and any alleged bias on the part of the judge could have been adequately raised and resolved in the ordinary appellate process if he had been tried and convicted. "Where a petitioner can raise his claim in the normal course of trial and appeal, relief [under G. L. c. 211, § 3,] will be denied." Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800 , 802 (1986), and cases cited.

Appeal dismissed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Christopher Johnston, pro se.