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SJC-12171

RICHARD ZAGRANSKI vs. COMMONWEALTH.

June 27, 2017.

Supreme Judicial Court, Superintendence of inferior courts. 

Practice, Criminal, Capital case.

The 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.

1 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 

reconsideration.2

 

1 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 cited.

2 Zagranski's petition for a writ of certiorari to the 

United States Supreme Court was also denied.
2

In 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.

A 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.3 

 

3 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 
3

The single justice did not err or abuse her discretion in 

denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

Richard Zagranski, pro se.

Eva M. Badway, Assistant Attorney General, for the 

Commonwealth.

 

motion and denial of leave to appeal pursuant to G. L. c. 278, 

§ 33E.