Pierce

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SJC-13748

EDWARD PIERCE, petitioner.

Plymouth. October 10, 2025. - February 9, 2026.

Present: Budd, C.J., Kafker, Wendlandt, Georges,

& Wolohojian, JJ.

Habeas Corpus. Practice, Civil, Civil commitment, Sex offender,

Appeal, Dismissal of appeal. Sex Offender. Evidence,

Opinion, Sex offender.

Petition for a writ of habeas corpus filed in the Superior

Court Department on February 16, 2023.

The case was heard by Michael A. Cahillane, J.

After review by the Appeals Court, 105 Mass. App. Ct. 156

(2025), the Supreme Judicial Court granted leave to obtain

further appellate review.

Mary P. Murray for the respondent.

Joseph M. Kenneally for the petitioner.

Joseph N. Schneiderman, for Committee for Public Counsel

Services, amicus curiae, submitted a brief.

WENDLANDT, J. In Johnstone, petitioner, 453 Mass. 544, 553

(2009), we determined that G. L. c. 123A, the statute governing

the civil commitment of a sexually dangerous person (SDP),

2

requires at least one qualified examiner to opine that the

person is an SDP given the central role of qualified examiners

in the statutory scheme. If no qualified examiner so opines,

the Commonwealth cannot meet its burden of proof, and the

individual is entitled to a directed verdict or required finding

of not sexually dangerous.

This case presents the question whether a writ of habeas

corpus provided an available remedy to the petitioner, Edward

Pierce, who challenged his civil commitment under G. L. c. 123A

on the ground that no qualified examiner opined that he was an

SDP. We first conclude that the appeal from the grant of the

writ is properly before us. We next conclude, as did the

Superior Court judge, that Pierce is entitled to some form of

relief; where neither of the qualified examiners appointed to

evaluate him opined that he was an SDP, he was entitled to a

required finding of not sexually dangerous under the statutory

scheme. See McIntire, petitioner, 458 Mass. 257, 262 (2010),

cert. denied, 563 U.S. 1012 (2011) (Johnstone error generally

requires relief from judgment). Further concluding that the

circumstances presented do not support the extraordinary writ of

habeas corpus because Pierce had an alternative avenue to

challenge his civil commitment, we vacate the order granting

habeas corpus relief and remand to the Superior Court with

3

direction to treat Pierce's petition as a motion for relief from

judgment, which in the circumstances here must be allowed.1

1. Background. In 1997, a jury convicted Pierce of

indecent assault and battery on a child under fourteen, his

nephew. Pierce was sentenced to two years and six months of

incarceration. In October 1999, the prosecuting district

attorney's office timely filed a petition pursuant to G. L.

c. 123A, § 12 (b), to civilly commit Pierce as an SDP2 upon the

expiration of his period of incarceration.3 The petition alleged

1 We acknowledge the amicus brief submitted by the Committee

for Public Counsel Services.

2 An SDP is defined, in relevant part, as

"any person who has been . . . previously adjudicated [of a

sexual offense, including indecent assault and battery on a

child under fourteen] by a court of the [C]ommonwealth and

whose misconduct in sexual matters indicates a general lack

of power to control his sexual impulses, as evidenced by

repetitive or compulsive sexual misconduct by either

violence against any victim, or aggression against any

victim under the age of [sixteen] years, and who, as a

result, is likely to attack or otherwise inflict injury on

such victims because of his uncontrolled or uncontrollable

desires."

G. L. c. 123A, § 1.

3 For a thorough review of the SDP commitment process, which

must be commenced before a person is released from incarceration

on the underlying sexual offense, see Commonwealth v. Nieves,

446 Mass. 583, 585-587 (2006). See also G. L. c. 123A,

§ 12 (a), (b) (setting forth requisite notice to, inter alia,

district attorney of impending release of person convicted of

qualifying sexual offense at least six months prior to release

4

that Pierce was likely to reoffend if not confined to a secure

facility because, inter alia, he had sexually assaulted several

boys in addition to his nephew. At the time the petition was

filed, the district attorney had not charged Pierce for the

offenses against the other boys.

In August 2001, a Superior Court judge found probable cause

to believe Pierce was an SDP and ordered that he be committed

temporarily to the Massachusetts Treatment Center (treatment

center) to be examined4 by two qualified examiners.5 Based on

their misunderstanding that they could not consider uncharged

allegations of sexual assault, both qualified examiners opined

and procedure for district attorney to file civil commitment

petition).

4 See G. L. c. 123A, §§ 12 (c) (requirement that judge find

probable cause that person named in petition for civil

commitment is SDP), 13 (authorizing examination at treatment

center for sixty-day period).

5 A "qualified examiner" is

"a physician who is licensed pursuant to [G. L. c. 112,

§ 2,] who is either certified in psychiatry by the American

Board of Psychiatry and Neurology or eligible to be so

certified, or a psychologist who is licensed pursuant to

[G. L. c. 112, §§ 118 to 129]; provided, however, that the

examiner has had two years of experience with diagnosis or

treatment of sexually aggressive offenders and is

designated by the commissioner of correction."

G. L. c. 123A, § 1.

5

that Pierce did not meet the statutory criteria for

classification as an SDP.6

In 2001, presaging our decision in Johnstone, 453 Mass. at

553, where we determined that, under the statutory scheme set

forth in G. L. c. 123A, unless a qualified examiner opines that

the person is an SDP, the person alleged to be an SDP is

entitled to a directed verdict or required finding of not

sexually dangerous, Pierce filed a motion for summary judgment,

arguing, inter alia, that because both qualified examiners

opined that he was not an SDP, a reasonable fact finder could

not find beyond a reasonable doubt that he met the criteria to

be civilly committed. A different Superior Court judge (second

judge) denied the motion, concluding that a fact finder could

reject the opinions of the two qualified examiners and instead

6 After a Superior Court judge denied Pierce's motion for

summary judgment, see discussion infra, but approximately three

months before Pierce's trial, we clarified that qualified

examiners in SDP proceedings may consider uncharged sexual

offenses so long as the allegations are "independently

admissible and are a permissible basis for an expert to consider

in formulating an opinion" (citation omitted). Commonwealth v.

Markvart, 437 Mass. 331, 336-337 (2002). Apparently, the

qualified examiners were not asked to reconsider their opinions

in light of Markvart even though one of them had stated that he

would have opined that Pierce was an SDP if he could have

considered the uncharged conduct, explaining that together with

the sexual offense for which Pierce was incarcerated, the

uncharged conduct showed that he was "clearly a repetitive and

compulsive sexual offender who suffer[ed] from a mental

abnormality; that is, Pedophilia, the recurrent and intense

sexual arousal to children."

6

rely on the opinion of the Commonwealth's expert, who opined

that Pierce was an SDP.7

Following a jury-waived trial in October 2002 during which

the Commonwealth presented the testimony of three victims who

stated that Pierce had sexually assaulted them when they were

minors, evidence of the 1997 conviction for the sexual assault

against Pierce's nephew, and its expert's opinion that Pierce

was an SDP,8 another Superior Court judge (third judge) concluded

that Pierce was an SDP and ordered him to be civilly committed

to the treatment center for an indeterminate period of from one

day to life (2002 commitment order).9 Pierce then fled the

Commonwealth and lived as a fugitive for over two years.

In June 2005, authorities apprehended Pierce in Vermont and

brought him to the treatment center. In July 2005, Pierce filed

a notice of appeal from the 2002 commitment order, which was

dismissed as untimely. Pierce did not appeal from the

dismissal.

7 The second judge did not have the benefit of our decision

in Johnstone, 453 Mass. at 553.

8 The expert was not a qualified examiner. As discussed

supra, neither of the two designated qualified examiners opined

that Pierce was an SDP.

9 See G. L. c. 123A, § 14 (d) (establishing burden of proof

at trial and commitment for "an indeterminate period of a

minimum of one day and a maximum of such person's natural

life").

7

In September 2007, Pierce filed a petition for discharge

pursuant to G. L. c. 123A, § 9.10 After at least one qualified

examiner opined that Pierce was an SDP, Pierce withdrew his

petition for discharge.11 Pierce subsequently filed four

discharge petitions -- in 2011, 2014, 2017, and 2019 -- and

withdrew each of them before trial.

Meanwhile, between 2006 and 2008, Pierce was convicted of,

inter alia, indecent assault and battery on a person fourteen or

older in violation of G. L. c. 265, § 13H, and statutory rape of

a child in violation of G. L. c. 265, § 23, based on sexual

offenses disclosed at Pierce's 2002 SDP trial. Pierce was

sentenced to an aggregate of from twelve to eighteen years in

prison, with ten years of probation to be served upon release.

In September 2022, Pierce completed the committed portion of his

criminal sentence; thereafter, he continued to be held pursuant

to the 2002 commitment order.

In February 2023, Pierce filed a petition for a writ of

habeas corpus, which is the subject of the present appeal. In

10A person committed under the statute is "entitled to file

a petition for examination and discharge once in every twelve

months." G. L. c. 123A, § 9. Upon the filing of such a

petition, the petitioner is assessed for continuing sexual

dangerousness by two qualified examiners. Id.

11Before Pierce's motion to withdraw was allowed, both

qualified examiners appointed to examine him in anticipation of

his discharge trial had submitted opinions that he was an SDP.

8

his petition, Pierce argued, as he had in his motion for summary

judgment, that the 2002 commitment order was unlawful because

neither qualified examiner opined that he was an SDP, this time

relying on Johnstone, 453 Mass. at 553. The respondent, the

superintendent of the treatment center, opposed the petition,

arguing that Pierce was not entitled to a writ of habeas corpus

because he could have challenged the 2002 commitment order by

(1) direct appeal, (2) a motion for a new trial, or (3) a

declaratory judgment action. A Superior Court judge granted

Pierce's petition for a writ of habeas corpus, concluding

(1) that our decision in Johnstone was rooted in the

constitutional principle of due process, (2) that, as a result,

Pierce was being held pursuant to an "unconstitutional

commitment order" because neither qualified examiner concluded

that he was an SDP, and (3) relying on the clairvoyance

exception to the waiver doctrine, that a writ of habeas corpus

was available as a remedy because Johnstone was issued after the

time for Pierce to appeal had lapsed. The judge temporarily

stayed the discharge order.

The respondent appealed and filed a motion for a stay of

the petitioner's release in the Appeals Court. A single justice

of the Appeals Court denied the motion, and in September 2023,

Pierce was released from the treatment center subject to the

conditions of probation associated with his 2008 sentence for

9

indecent assault and battery on a person fourteen or older. The

conditions, which are set to expire in 2032, include, inter

alia, global positioning system (GPS) monitoring12 and weekly sex

offender treatment.13

Before oral argument on the respondent's appeal, the

Appeals Court asked the parties to address the additional

question whether an order granting habeas corpus relief is

appealable. Pierce, petitioner, 105 Mass. App. Ct. 156, 157

(2025). Pierce subsequently filed a motion to dismiss the

respondent's appeal, arguing that the Appeals Court lacked

jurisdiction to consider an appeal from the issuance of a writ

of habeas corpus. In a thorough, well-reasoned opinion, the

Appeals Court reversed the order granting a writ of habeas

corpus and denied Pierce's motion to dismiss, concluding that

(1) habeas corpus was not an available remedy where, as here,

the petitioner had alternative remedies, including a direct

12On the record before us it appears that Pierce is subject

to GPS monitoring as a condition of probation without a

designated exclusion zone or curfew. Cf. Commonwealth v.

Rodriguez, 494 Mass. 723, 725 (2024) (upholding GPS monitoring

as probationary condition because "the Commonwealth had strong

interests in the protection of the public through enforcement of

exclusion zones and in the deterrence and investigation of

future crimes").

13In a January 2025 letter, the probation officer

supervising Pierce reported that he has been in full compliance

with the conditions of his probation since his release in 2023.

Nothing in the record indicates that Pierce has since violated

any terms of his probation.

10

appeal and a motion for relief from the judgment of commitment

and (2) the respondent's appeal was permissible. Id. at 163-

173. We granted Pierce's application for further appellate

review.

2. Discussion. a. Standard of review. The issues on

appeal are questions of law, which we review de novo. See

Robinhood Fin. LLC v. Secretary of the Commonwealth, 492 Mass.

696, 707 (2023). See, e.g., Averett, petitioner, 404 Mass. 28,

29-32 (1989) (reviewing de novo whether writ of habeas corpus

provided available remedy to petitioner after Superior Court

judge granted writ).

b. Habeas corpus. The writ of habeas corpus, deemed "the

most celebrated writ in the English law," dates at least from

the Magna Carta of 1215. 3 W. Blackstone, Commentaries *129,

*133. See Sheriff of Suffolk County v. Pires, 438 Mass. 96, 97-

98 (2002) (discussing historical origins of "'The Great Writ,'

habeas corpus"). See generally J.F. Stanton, Appellate Practice

and Procedure § 23:48 (4th ed. 2020) (describing writ of habeas

corpus as "one of the bedrock principles of Anglo–Saxon law" and

reviewing its early codification in Massachusetts law). "The

great purpose of the writ of habeas corpus is the immediate

delivery of the party deprived of personal liberty." Wyeth v.

Richardson, 10 Gray 240, 241 (1857). See 3 W. Blackstone,

11

Commentaries *137 (noting that writ of habeas corpus is remedy

for "removing the injury of unjust and illegal confinement").

The right to seek a writ of habeas corpus is guaranteed in

Part II, c. 6, art. 7, of the Constitution of the Commonwealth,

which states:

"The privilege and benefit of the writ of habeas corpus

shall be enjoyed in this commonwealth in the most free,

easy, cheap, expeditious and ample manner; and shall not be

suspended by the legislature, except upon the most urgent

and pressing occasions, and for a limited time not

exceeding twelve months."

The Legislature codified the right to seek a writ of habeas

corpus, permitting an individual to petition for the writ either

as of right, G. L. c. 248, § 1,14 or at the discretion of the

court, G. L. c. 248, § 25.15

14 General Laws c. 248, § 1, provides, in relevant part:

"Whoever is imprisoned or restrained of his liberty may, as

of right and of course, prosecute a writ of habeas corpus,

according to this chapter, to obtain release from such

imprisonment or restraint, if it proves to be unlawful,

unless . . . [h]e has been convicted or is in execution

upon legal process, civil or criminal."

15 General Laws c. 248, § 25, provides, in relevant part:

"This chapter shall not affect the power of the supreme

judicial court, or the superior court, or a justice

thereof, to issue a writ of habeas corpus in its discretion

. . . to discharge [a petitioner] as law and justice

require. The court shall have no power to issue a writ of

habeas corpus, at its discretion for . . . a person who is

imprisoned or restrained of his liberty pursuant to a

criminal conviction."

12

c. Appeal from allowance of a writ of habeas corpus. As a

preliminary matter, Pierce contends that the Superior Court

judge's decision granting the writ is unappealable; according to

Pierce, even if the writ of habeas corpus was granted in error,

we lack appellate jurisdiction to review it. He maintains that

dismissal of the appeal is required under this court's decision

in Wyeth, 10 Gray at 241, where we determined that "exceptions

do not lie" from a judgment allowing a writ of habeas corpus

(Wyeth rule).16 There, we reasoned that because "[t]he great

purpose of the writ of habeas corpus is the immediate delivery

of the party deprived of personal liberty," permitting an appeal

"would be wholly inconsistent with the purpose of the writ."

Id.

We have reaffirmed this general principle repeatedly. See,

e.g., Pires, 438 Mass. at 101 ("Commonwealth has no right to

seek appellate review if the writ is granted"); Averett, 404

Mass. at 32 (referencing "longstanding rule in the Commonwealth

Historical bills of exceptions and writs of error have

16

been superseded by the rules of appellate procedure. See

Reporter's Notes (1979) to Rule 1 (a), Mass. Ann. Laws Court

Rules, Rules of Appellate Procedure, at 689 (LexisNexis 2024)

("Bills of exceptions [former G. L. c. 278, § 31], writs of

error [former G. L. c. 250, §§ 1-2, 9-13], and the limited

'appeal' from a judgment of the Superior Court based on a

'matter of law apparent upon the record' [former G. L. c. 278,

§ 28,] are superseded by an appeal under these rules . . .").

See also Mass. R. A. P. 1 (c), as amended, 487 Mass. 1601 (2019)

(defining "appeal").

13

. . . that appeal does not lie from an issuance of a writ of

habeas corpus"); Stokes v. Superintendent, Mass. Correctional

Inst., Walpole, 389 Mass. 883, 885 (1983) (citing Wyeth for

"long standing rule of the Commonwealth . . . that exceptions do

not lie from an issuance of the writ of habeas corpus" [citation

omitted]); Hennessy v. Superintendent, Mass. Correctional Inst.,

Framingham, 386 Mass. 848, 850 (1982) (declining to abandon

Wyeth rule that "an appeal does not lie from the issuance of the

writ"); Pina v. Superintendent, Mass. Correctional Inst.,

Walpole, 376 Mass. 659, 664 (1978) ("The long standing rule of

the Commonwealth is that exceptions do not lie from an issuance

of the writ of habeas corpus").17

17As the Appeals Court more fulsomely examined, Pierce, 105

Mass. App. Ct. at 168-170, our case law demonstrates that this

general principle has not been honored absolutely. See, e.g.,

Newton, petitioner, 357 Mass. 346, 353 (1970) (examining merits

of Superior Court judge's allowance of writ of habeas corpus and

ordering petition dismissed without discussing propriety of

appeal); King's Case, 161 Mass. 46, 48, 50 (1894) (noting that

in Wyeth "it was decided that exceptions do not lie to the

discharge of a prisoner on habeas corpus by a single judge," but

later stating that "[w]hether at a hearing on habeas corpus

before a single justice sitting as a court exceptions can be

taken to any ruling on any question of law, or an appeal can be

taken from any judgment upon matters of law apparent on the

record, has not been decided"); Sanborn v. Carleton, 15 Gray

399, 400 (1860) (allowing respondent to appeal from issuance of

writ of habeas corpus). As discussed infra, this case does not

present occasion to consider, as the respondent urges us to do,

the question whether to abandon the Wyeth rule. Instead, the

appeal in this case is proper under the settled principle that

an appeal will lie from the grant of the writ to address the

14

While doing so, we have differentiated between an appeal

from the grant of a writ of habeas corpus to examine the

underlying merits of a petition, which the Wyeth rule generally

would prohibit, and an appeal to determine the threshold

question whether the judge had the discretion to grant the writ

in the first instance. An appeal to consider the latter inquiry

is permissible despite the Wyeth rule.

Thus, in Pires, 438 Mass. at 96, we permitted appellate

review of the grant of the writ of habeas corpus to a defendant

who challenged an order revoking his bail18 to address the

antecedent question whether a writ of habeas corpus was a proper

means of appealing from a bail revocation proceeding. We

concluded that it was not, in view of two limitations on a

judge's discretion to issue the writ. Id. at 99-101. First, a

writ of habeas corpus generally is not a substitute for an

appeal. Id. at 99-100, quoting O'Leary, petitioner, 325 Mass.

threshold question whether a judge had any discretion to allow

the writ at all.

18In Pires, 438 Mass. at 97, the defendant's bail had been

revoked in the District Court following a hearing where he was

not allowed to present witnesses. The defendant filed a

petition for a writ of habeas corpus in the Superior Court. Id.

The Superior Court judge reversed the bail revocation and

further ordered, in the alternative, that if the judge did not

have the authority to reverse the bail revocation, the order was

to "be deemed a conditional writ of habeas corpus." Id. The

sheriff of Suffolk County petitioned for review of the allowance

to a single justice of this court pursuant to G. L. c. 211, § 3.

Id. at 96.

15

179, 184 (1950) ("habeas corpus 'cannot take the place of a writ

of error in a case which was within the jurisdiction of the

court, and where the only question raised is the correctness of

the rulings of the court'"). Second, the writ "is available

only where granting the writ would result in the petitioner's

immediate release from custody." Pires, supra at 100. Because

the petitioner's contention was not that the law failed to

authorize bail revocation and detention or that he was held

beyond the period authorized, but instead was a challenge to the

adequacy of the evidence and process used in committing him

under the law, his petition failed to overcome the first

limitation. Id. at 100. Instead, the petitioner's challenge

could be raised pursuant to G. L. c. 211, § 3. Id. at 100-101.

In examining the threshold question whether the judge had

discretion to grant the writ, we explained that adherence to the

limitations on the court's discretion to grant the writ was

particularly important "where [under the Wyeth rule] the

Commonwealth has no right to seek appellate review if the writ

is granted." Id. at 101. In short, we differentiated between

an appeal to consider the threshold inquiry whether a writ of

habeas corpus was available, which was permitted, and an appeal

to consider the merits of the grant of the writ, which was not.

See Averett, 404 Mass. at 29-32 (permitting appeal of threshold

question whether writ of habeas corpus was available to

16

petitioner, concluding that it was, and declining to address

respondent's objections to merits of habeas petition pursuant to

Wyeth rule).

Similarly, in Stokes, Hennessy, and Pina, this court

allowed the respondent to appeal from a grant of a writ of

habeas corpus to consider the threshold question whether the

writ was available as a remedy. See Stokes, 389 Mass. at 883,

885-886; Hennessy, 386 Mass. at 850-852; Pina, 376 Mass. at 660,

664-666. In each case, we concluded the writ was not available

as a remedy because even if the petitioners were correct on the

merits of their argument -- that the respondents miscalculated

their earned good time credits or failed to timely provide a

status review hearing -- they were not entitled to immediate

release from the respondents' custody.19 See Stokes, supra at

886; Hennessy, supra at 851-852; Pina, supra at 665-666. See

also Stewart, petitioner, 411 Mass. 566, 569 (1992) ("a petition

19A party seeking appellate review on the threshold

question of the availability of the writ may either file a

petition pursuant to G. L. c. 211, § 3, see Pires, 438 Mass. at

96 (reviewing threshold question of availability of writ of

habeas corpus after respondent filed petition pursuant to G. L.

c. 211, § 3), or appeal in the ordinary course, see Averett, 404

Mass. at 28-29 (reviewing threshold question after Superior

Court judge issued writs of habeas corpus and Appeals Court

vacated judgments). See also G. L. c. 231, § 113 ("A party

aggrieved by a final judgment of the superior court . . . may

appeal therefrom to the appeals court or, subject to the

provisions of [G. L. c. 211A, § 10], to the full court of the

supreme judicial court").

17

for habeas corpus relief does not lie" where petitioner is not

entitled to immediate release, even if petitioner would prevail

on substantive merits of his claims). The respondent's appeal

is thus proper.20

d. Availability of the writ. Pierce next contends that a

writ of habeas corpus was available to him as a remedy to cure

the Johnstone error. We disagree. Because of its extraordinary

nature, and because of society's countervailing interest in

finality, a court's discretion to grant a writ of habeas corpus

has long been circumscribed. See generally 39 Am. Jur. 2d,

Habeas Corpus § 5 (2019) ("Habeas corpus furnishes an

extraordinary, limited remedy against a presumptively fair and

valid final judgment").

"In general, [a judge evaluating a petition for a writ of

habeas corpus has no discretion] . . . to inquire into the

merits of a judgment under which a party is committed;

otherwise this very summary proceeding, regarded as so

important to the security of personal liberty, would come

20Allowing an appeal to address the threshold question need

not result in undue delay. See Part II, c. 6, art. 7, of the

Constitution of the Commonwealth ("The privilege and benefit of

the writ of habeas corpus shall be enjoyed in this commonwealth

in the most free, easy, cheap, expeditious and ample manner

. . ."). For example, delays can be minimized by expediting

appellate proceedings. See, e.g., Mass. R. A. P. 23 (b), (c),

as appearing in 481 Mass. 1653 (2019) (allowing for expedited

issuance of rescript); LeSage, petitioner, 488 Mass. 175, 177

(2021) (in discharge proceeding pursuant to G. L. c. 123A, § 9,

single justice granted Commonwealth leave to file interlocutory

appeal on jury trial issue and ordered expedited appeal).

18

to be regarded as a mere general appeal or writ of error

. . . ."21

Clarke's Case, 12 Cush. 320, 321 (1853). See Fleming v. Clark,

12 Allen 191, 200 (1866) ("we see no reason for interfering in

this extraordinary manner, by writ of habeas corpus, to

discharge a person committed under a judgment of a court of

competent jurisdiction"); 3 W. Blackstone, Commentaries *132

(writ of habeas corpus requires showing of "some probable cause

why the extraordinary power of the crown is called in" to issue

it). See also Crowley, petitioner, 54 Mass. App. Ct. 447, 451

(2002) ("In both its statutory and constitutional derivations,

the right to habeas corpus is limited in nature"). Adherence to

the limitations to the availability of the writ is important

because of its extraordinary nature: the allowance of the writ

entitles the petitioner to immediate release, and under the

Wyeth rule, the Commonwealth generally lacks a right to appeal

the merits of its allowance. See Pires, 438 Mass. at 101. But

see note 17, supra.

Accordingly, a writ of habeas corpus is not a substitute

for the ordinary appellate process. See Pires, 438 Mass. at 99,

quoting Crowell v. Commonwealth, 352 Mass. 288, 289 (1967) (writ

of habeas corpus generally "cannot be employed as a substitute

Writs of error have been superseded by the rules of

21

appellate procedure. See note 16, supra.

19

for ordinary appellate procedure"). A judge considering a

petition for a writ of habeas corpus generally lacks discretion

to grant such relief based on errors that could have been raised

in a direct appeal. See Pires, supra at 100-102 (vacating grant

of writ of habeas corpus as beyond judge's discretion where,

inter alia, petitioner did not challenge authority to revoke

bail and instead sought review of merits of underlying judgment

revoking bail; petitioner's remedy was through prescribed

appellate process). See also Crystal, petitioner, 330 Mass.

583, 590-591 (1953) (noting "settled" law that writ of habeas

corpus is generally not available "where there is a remedy by

writ of error or appeal," but permitting remedy by habeas corpus

because order of contempt was "wholly void and not merely

voidable, and the person imprisoned is entitled to be discharged

without first seeking to reverse the void order"); O'Leary, 325

Mass. at 184 (stating general rule that habeas corpus "cannot

take the place of a writ of error in a case which was within the

jurisdiction of the court, and where the only question raised is

the correctness of the rulings of the court," but permitting

habeas corpus relief where petitioner had no avenue to pursue

direct appeal and was held "without due process of law");

Kelley, petitioner, 292 Mass. 198, 199-200 (1935) ("A writ of

habeas corpus cannot be invoked to perform the purposes of a

writ of error"); Connors, petitioner, 254 Mass. 103, 105 (1925)

20

("If the court proceeded erroneously or irregularly [in

incarcerating petitioner for fraudulent transfer of funds], the

remedy is by writ of error, and not by habeas corpus"); Flito's

Case, 210 Mass. 33, 35 (1911) ("The writ of habeas corpus is not

to take the place of an appeal, a bill of exceptions, or a writ

of error, in a case like this . . . in which the only question

raised is as to the correctness of the rulings made" by trial

judge); Gorman's Case, 124 Mass. 190, 193 (1878) ("Where, as

here, the court rendering the judgment had jurisdiction, the

regularity of its proceedings will not be inquired into

collaterally [on habeas corpus], and its judgment stands good

until reversed or annulled by a proper course of proceedings for

the purpose"); Adams v. Vose, 1 Gray 51, 55-56 (1854) (where

court of competent jurisdiction issues "erroneous" judgment,

"[it] stands good until reversed by due proceedings, instituted

for that purpose in some higher court, and is not to be examined

collaterally, as it would be in a proceeding on a writ of habeas

corpus").22

22Pierce relies on three cases in support of his contention

that the writ of habeas corpus is an available alternative to

the ordinary appellate process. In each case, however, we

denied habeas corpus relief without discussing whether the writ

was the proper vehicle for asserting the claimed errors. See

Drayton v. Commonwealth, 450 Mass. 1021 (2008); Andrews,

petitioner, 368 Mass. 468 (1975); LaMorre v. Superintendent of

Bridgewater State Hosp., 347 Mass. 534 (1964).

21

Pierce nonetheless contends that a writ of habeas corpus

was available to him because he was denied the opportunity to

raise the Johnstone error on appeal; in 2005, he sought a direct

appeal from his 2002 commitment judgment after he was

apprehended, but the appeal was dismissed as untimely. In other

words, Pierce contends that while a writ of habeas corpus

generally is not available to one who fails to appeal

altogether, it is available here because he tried to pursue an

appeal but did so untimely. We disagree that this extraordinary

remedy is available in such a circumstance; instead, the writ of

habeas corpus generally is not a tool for a second appeal

whenever an incarcerated person fails to appeal, or where, as

here, fails to appeal timely. See Kauffman, petitioner, 413

Mass. 1010, 1011 (1992) ("petitions for writs of habeas corpus

may not be used to raise issues that should have been raised on

appeal" [emphasis added]); Dirring, petitioner, 344 Mass. 522,

523 (1962) (concluding that writ of habeas corpus was

unavailable to petitioner who could have but failed to raise

suppression issue by "appropriate appellate procedure");

Crystal, 330 Mass. at 590-591 (concluding that writ of habeas

corpus was available even though petitioner "could have appealed

from the contempt decree" because of "exception" to general rule

that habeas is not substitute for "ordinary appellate procedure"

where order is void, and not merely voidable [emphasis added]);

22

Adams, 1 Gray at 56-57 (concluding that errors raised on appeal

regarding sufficiency of evidence before trial judge were "not

open . . . for revision upon a habeas corpus," where judge had

jurisdiction over cause and petitioner did not appeal from

judgment).

Pierce also presses the argument that the Superior Court

judge properly issued the writ because the error in his 2002

trial was not announced until this court's 2009 decision in

Johnstone and thus fell within the "clairvoyance exception" to

the waiver doctrine in criminal appeals. See Commonwealth v.

Randolph, 438 Mass. 290, 295 (2002), quoting Commonwealth v.

Rembiszewski, 391 Mass. 123, 126 (1984) (clairvoyance exception

"applies to errors of a constitutional dimension 'when the

constitutional theory on which the defendant has relied was not

sufficiently developed at the time of trial or direct appeal to

afford the defendant a genuine opportunity to raise his claim at

those junctures of the case'").

Pierce's argument misconstrues Johnstone. The requirement

that the Commonwealth present an opinion from at least one

qualified examiner that the individual is an SDP is "based on

the integral role of the qualified examiners in the entire

23

statutory scheme," not constitutional due process.23 Johnstone,

453 Mass. at 553. See Chapman, petitioner, 482 Mass. 293, 306

(2019) (declining to overturn Johnstone in part because "stare

decisis is particularly weighty where, as here, the Legislature

has declined to exercise its authority to overturn the court's

interpretation of a statute" [emphasis added; quotations and

citation omitted]); McIntire, 458 Mass. at 261 (noting that

Johnstone was not decision of constitutional dimension, but

rather "purely one of statutory interpretation"). Due process

requires that a civil commitment order be supported by expert

testimony that the individual named in the commitment petition

is an SDP. See Commonwealth v. Bruno, 432 Mass. 489, 511 (2000)

("Whether a person suffers from a mental abnormality or

personality defect, as well as the predictive behavioral

question of the likelihood that a person suffering from such a

condition will commit a sexual offense, are matters beyond the

range of ordinary experience and require expert testimony").

23Pierce's reliance on Green, petitioner, 475 Mass. 624,

629-630 (2016), is misplaced. To be sure, in Green, we stated

that "[t]he thrust of Johnstone is that because a person may be

involuntarily and indefinitely committed as an SDP, due process

and G. L. c. 123A require proof of sexual dangerousness beyond a

reasonable doubt based on expert testimony from a designated

qualified examiner" (emphasis added). Id. Later in that

opinion, however, we clarified that Johnstone regarded the

"gatekeeper" role played by qualified examiners in the

"statutory scheme," not a separate requirement grounded in

substantive due process. Id. at 630, quoting Johnstone, 453

Mass. at 552.

24

Due process, however, does not dictate that such expert opinion

be given by a qualified examiner.24 Accordingly, assuming,

arguendo, that the clairvoyance exception applies to civil

commitment orders, it does not extend to the statutory error in

this case.

To be sure, as the Superior Court judge recognized, the

Johnstone error means that Pierce's civil commitment was not

permitted under the governing statutory scheme; however, as

discussed infra, Pierce has an alternative avenue for relief.

As such, the circumstances of this case do not present an

exceptional circumstance where the writ of habeas corpus may

issue despite the general rule that habeas corpus relief is not

available to a petitioner who raised or could have raised the

issue on direct appeal. See 39 C.J.S. Habeas Corpus § 28 (2025)

("The fact that the petitioner has permitted the time to elapse

within which an appeal may be taken does not give the petitioner

the right to resort to habeas corpus . . . . However, this rule

is not an inflexible one, and in exceptional cases, the writ may

issue after the time for an appeal has elapsed, but only in the

discretion of the court and not as a matter of right" [footnotes

omitted]). Contrast Crystal, 330 Mass. at 588-589, 591

24Because the Commonwealth presented expert testimony from

a forensic psychologist that Pierce was an SDP at his 2002

commitment trial, Pierce was not deprived of due process.

25

(allowing writ of habeas corpus even though petitioner had

"remedy by [direct] appeal" because of extraordinary

circumstances presented in petition challenging jurisdiction of

court to issue commitment order and lack of due process in

holding petitioner in contempt).

e. Motion for relief from judgment. In particular, Pierce

can raise the Johnstone error by a motion for relief from

judgment.25 Our decision in McIntire, 458 Mass. at 258-262, is

instructive. There, the petitioner filed a motion for a new

trial five years after he received an adverse judgment in a

discharge proceeding pursuant to G. L. c. 123A, § 9. Id. at

259-260. He challenged the judgment on the ground that both

qualified examiners opined that he was not an SDP, and only a

licensed psychologist, a professional who was not one of the two

statutorily appointed qualified examiners, opined that he was an

SDP. Id. We concluded that reversal of the judgment was

required because petitioner's trial did not comply with the

Contrary to the respondent's contention, "[a] discharge

25

petition under G. L. c. 123A, § 9, is not the appropriate means

to challenge the validity of the original commitment," as "[t]he

sole issue at the § 9 hearing is whether the petitioner, having

previously been committed, remains sexually dangerous." McHoul,

petitioner, 445 Mass. 143, 157-158 (2005), cert. denied, 547

U.S. 1114 (2006).

26

requirements of G. L. c. 123A, as set forth in Johnstone.26 Id.

at 260-262.

Like the petitioner in McIntire, Pierce also raised a

Johnstone error years after the judgment entered. Pierce is

similarly entitled to relief.27,28

26Although in McIntire we reversed a judgment finding the

petitioner to be an SDP on Johnstone grounds, we nevertheless

concluded that the petitioner was not entitled to be discharged

because, while his appeal was pending, the petitioner was

adjudged an SDP in three other discharge proceedings supported

by qualified examiner opinions. McIntire, 458 Mass. at 263-266.

Here, there have been no intervening judgments supported by a

qualified examiner opinion that Pierce is an SDP. Relevant to

the present circumstances, in McIntire we observed, "It is true

that if we were now deciding this direct appeal from the

petitioner's 2002 discharge proceeding with no discharge

proceedings having been tried in the interim, he would be

entitled to an order of discharge." Id. at 267 n.13.

27Because the statutory scheme for civil commitment

precludes the Commonwealth from proceeding to trial where, as

here, the qualified examiners did not opine that Pierce was an

SDP, the petitioner's 2002 commitment order must be reversed.

See Johnstone, 453 Mass. at 552 ("if both qualified examiners

determine that a person is not sexually dangerous, the

Commonwealth cannot meet its burden of proof"); 2 M.G. Perlin

& D. Cooper, Massachusetts Proof of Cases § 68:13 (2025-2026

ed.) ("The general rule is that where the party having the

burden of proof upon a case or decisive issue fails to put on

evidence which, even if believed, is sufficient as matter of law

to sustain the case or issue, the opposing party is entitled as

matter of law to a directed verdict in jury cases, or to a

finding as matter of law in non-jury cases" [footnote omitted]).

28Although the Massachusetts Rules of Civil Procedure do

not govern "proceedings pertaining to the adjudication,

commitment and release of sexually dangerous persons," Mass.

R. Civ. P. 81 (a) (1), as amended, 481 Mass. 1401 (2018), "[i]n

respects not governed by statute . . . the practice in civil

proceedings to which [the rules of civil procedure] do not apply

27

3. Conclusion. The order granting the petitioner a writ

of habeas corpus is vacated. We remand the matter to the

Superior Court to treat the petition for a writ of habeas corpus

as a motion for relief from the 2002 commitment order, which

must be allowed.

So ordered.

shall follow the course of the common law, as near to these

rules as may be," Mass. R. Civ. P. 81 (a) (3), as amended, 481

Mass. 1401 (2018). Rule 60 (b) (5) permits relief on the ground

that "it is no longer equitable that the judgment should have

prospective application", and rule 60 (b) (6) provides for

relief based on "any other reason justifying relief from the

operation of the judgment." See Mass. R. Civ. P. 60, 365 Mass.

828 (1974). See also Marsch v. Southern New England R.R., 235

Mass. 304, 305 (1920) ("A final judgment may be set aside on an

appeal seasonably taken for the correction of errors of law

apparent on the face of the record, or by a petition to vacate a

judgment, or by a writ of review . . . or by a writ of error, if

there are grounds for any of these proceedings" [citation

omitted]).