Opinion
10-P-1334
11-09-2011
THOMAS E. FENNELLY, petitioner.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In November, 1989, the petitioner, Thomas E. Fennelly, was convicted of assault with intent to rape a child and assault and battery by means of a dangerous weapon. He pleaded guilty to an additional count of assault and battery by means of a dangerous weapon. After the petitioner's sentence expired in 2003, he was adjudicated a sexually dangerous person and civilly committed to the Massachusetts Treatment Center (treatment center). In March, 2010, the petitioner filed a petition for a writ of habeas corpus, which was denied by a Superior Court judge.
The petitioner appeals from the denial, arguing that (1) the judge erred in failing to treat the petition as a motion for judgment on the pleadings, and (2) the judge erred in failing to issue a memorandum of law and facts explaining the dismissal of the petition.
The petitioner's one-sentence argument, devoid of case law, does not rise to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Dutil, petitioner, 437 Mass. 9, 22 (2002).
So far as appears, the petitioner still has a live petition for habeas corpus under Suffolk Superior Court Criminal No. 2010-10267, and thus this appeal may well be premature. To the extent that this appeal simply reflects confusion in docketing and the two matters are in fact the same, or identical in substance, for the reasons discussed in Commonwealth v. Bruno, 432 Mass. 489, 499-502 (2000); Dutil, petitioner, 437 Mass. at 20; and Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 207-208 (1999), there is no merit to the petitioner's double jeopardy claim or his argument that his confinement under G. L. c. 123A is penal in nature.
For this reason, as well as for substantially those in the brief of the treatment center, we affirm the order denying the petition for writ of habeas corpus.
So ordered.
By the Court (Grasso, Brown & Kantrowitz, JJ.),