Opinion
No. 06-500.
January 22, 2007.
MEMORANDUM OF DECISION AND ORDER ON RESPONDENT'S MOTION TO DISMISS
INTRODUCTION
This action arises from the July 20, 1978 conviction and sentencing of petitioner Gary Moody (Moody). The Superior Court sentenced him to concurrent sentences, including one life sentence.
Moody brings this petition for a writ of habeas corpus, pursuant to G.L. c.248, claiming that he is entitled to relief because the trial judge imposed a sentence for rape without an evaluation or hearing as to his sexual dangerousness; the Parole Board denied him parole without the evaluation; and, he did not receive effective assistance of counsel in the prosecution of his direct appeal. Taking the facts alleged in the petition as true, and, for the purposes of this motion, assuming the accuracy of the claim of errors, the court determines that the alleged errors would not entitle Moody to immediate release from incarceration, and that the motion to dismiss the petition must be allowed. Further, the court declines to construe this action as one seeking declaratory relief.
DISCUSSION
The petition and its attachments provide the facts. Moody was convicted of rape (Norfolk indictment no. 70751), unarmed robbery (no. 70752), assault with intent to murder (no. 70753) and assault and battery by means of a dangerous weapon (no. 70754) on July 20, 1978. The court sentenced him to life for rape, fifteen to twenty years for robbery, and nine to ten years on the two remaining charges, imposing all of the sentences concurrently. Moody claims that he is entitled to relief because his trial attorney failed to file the then required assignment of errors, and because the trial judge did not obtain a Sexually Dangerous Person (SDP) evaluation before sentencing. Finally, he alleges that the Parole Board conducted his parole hearing without an SDP evaluation.
Moody included a copy of the court's decision on the Commonwealth's motion to dismiss his appeal, dating from August of 1985, in his opposition to the motion to dismiss. He raised two issues, the prosecutor's impermissible use of leading questions and the incompetence of the victim. The court found that the unpreserved issues did not present a substantial risk of a miscarriage of justice and dismissed the appeal, finding that the issues had little merit.
The court also noted that Moody sought to move forward on his appeal some seven years after his conviction.
Moody has neither alleged that he is entitled to, nor requested immediate release. Kauffman, Petitioner, 413 Mass. 1010, 1011-1012 (1992) (dismissal of petition for writ of habeas corpus correct where petitioner did not request immediate release); Stewart, Petitioner, 411 Mass. 566, 569 (1992) ("Since it appears, on the record before us, that even if the petitioner were to persuade us of the substantive merit of his claims, he would not be entitled to immediate release, a petition for habeas corpus relief does not lie."). Assuming that Moody is entitled to relief on his claims, he is not eligible for immediate release; at best he would be entitled to a new sentencing hearing and a new parole hearing. Even giving the petition the generous reading to which it is entitled, the court must dismiss it. New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 29 (1988).
Where Moody claims that he had a right to an SDP evaluation when he was sentenced for the crime of rape, that he was entitled to the evaluation prior to a parole hearing, and that he did not receive effective assistance of counsel, but fails to identify any meritorious issues on appeal, the court declines to exercise its discretion to construe the petition as one seeking declaratory relief because the claims lack merit. Nelson v. Commissioner of Correction, 390 Mass. 379, 386-7 (1983).
ORDER
The respondent Attorney General of the Commonwealth of Massachusetts' motion to dismiss petitioner Gary Moody's petition for a writ of habeas corpus is ALLOWED .