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OE-0142

IN THE MATTER OF ARTHUR BURNHAM.

April 29, 2020.

Practice, Civil, Action in the nature of mandamus. Supreme 

Judicial Court, Superintendence of inferior courts.

Arthur Burnham filed a complaint in this court seeking 

relief in the nature of mandamus. For the reasons set forth 

infra, the complaint is dismissed.

The complaint sets forth four primary requests for relief, 

all relating to postconviction motions and requests for relief 

that Burnham has made in a criminal proceeding in the Superior 

Court to withdraw his guilty plea. Specifically, he requests 

that this court (1) clarify whether his motion to withdraw his 

guilty plea pursuant to Mass. R. Crim. P. 30 (b), as appearing 

in 435 Mass. 1501 (2001), is a collateral proceeding or a direct 

appellate proceeding (implicating the right to counsel);1

(2) clarify whether appointment of counsel is otherwise required 

in such proceeding as a reasonable accommodation under the 

Federal Americans with Disabilities Act; (3) clarify whether he 

is entitled to other reasonable accommodations requested in the 

Superior Court; and (4) provide a "speedy remedy" for various 

other alleged instances of inaction or misconduct by the 

Superior Court in failing to provide relief requested in that 

court.

 

1 At the time the complaint was filed in the county court, 

Burnham's motion to withdraw his guilty plea in the underlying 

criminal proceeding remained pending. The Superior Court docket 

reflects that the motion was denied on March 4, 2020, and that 

Burnham filed a notice of appeal from that denial on March 18, 

2020.
2

"It would be hard to find any principle more fully 

established in our practice than the principle that neither 

mandamus nor certiorari is to be used as a substitute for 

ordinary appellate procedure or used at any time when there is 

another adequate remedy." Chawla v. Appeals Court, 482 Mass. 

1001, 1002, cert. denied, 140 S. Ct. 521 (2019), quoting Myrick

v. Superior Court Dep't, 479 Mass. 1012, 1012 (2018). Here, the 

relief requested by Burnham may be (and in some cases, already 

has been) requested in the first instance in the Superior Court. 

If relief is denied in the Superior Court, review is available 

in the Appeals Court on appeal from a final judgment or a final 

appealable order, as appropriate. See Mass. R. A. P. 4 (b), as 

appearing in 481 Mass. 1606 (2019). Burnham fails to make a 

showing that these alternative avenues of relief are inadequate.

Moreover, "[a] complaint in the nature of mandamus is 

limited to requiring a public official to perform a 'clear cut 

duty,' as opposed to requiring the exercise of discretion in a 

particular way." Chawla, 482 Mass. at 1002, quoting Ardon v. 

Committee for Pub. Counsel Servs., 464 Mass. 1001, 1001 (2012), 

cert. denied, 571 U.S. 872 (2013). "[M]andamus will not issue 

to direct a judicial officer to make a particular decision or to 

review, or reverse, a decision made by a judicial officer on an 

issue properly before him or her." Chawla supra, quoting 

Myrick, 481 Mass. at 1030. Thus, mandamus relief does not lie 

with respect to Burnham's various challenges to discretionary 

decisions of the Superior Court.

For these reasons, a judgment shall enter dismissing 

Burnham's complaint for relief in the nature of mandamus.

So ordered.

Arthur Burnham, pro se.