Supreme Judicial Court of Massachusetts – May 31, 2012
*Rescript
Facts: Birks was
convicted of murder in the first degree and illegal possession of a firearm.
Birks appealed from a judgment of a single justice of the court denying his
petition for a writ of mandamus. Birks filed a motion in the trial court
seeking appointment of a new counsel to prepare another motion for a new trial.
The judge denied the motion. Birks then filed a petition of mandamus in the
trail court asking the court to order trial counsel to answer twenty questions
to assist him with his motion for a new trial. The judge denied this petition
as well. Birks then filed essentially the same mandamus petition in the county
court.
Issue: Whether
the plaintiff can file a writ of mandamus in the trial court and county court
sequentially.
No. Although a writ of mandamus may be brought in either the
trial court or the Superior Court, this does not mean that a petitioner may
sequentially seek the identical relief in one court after the other. Concurrent
jurisdiction “does not, in other words, allow [a petitioner] two bites of the
apple.” (JT)
