COMMONWEALTH v. FREEMAN (2008)

 The defendant, James Freeman, III, was convicted of murder in the first degree and other crimes and was sentenced to life in prison.   He filed a motion for a new trial, which was denied by a judge of the Superior Court.   His appeal from that denial was consolidated with his direct appeal.   We affirmed both the conviction and the denial of the new trial motion.   Commonwealth v. Freeman,  442 Mass. 779, 781, 817 N.E.2d 727 (2004).   Freeman subsequently filed a second motion for a new trial, and various related motions, all of which were denied, as was a motion to reconsider the denial of the motion for a new trial.   Freeman then applied to a single justice of this court for leave to appeal from the denial of the second motion for a new trial, pursuant to G.L. c. 278, § 33E. The single justice denied the application on the ground that it presented no new or substantial issues warranting leave to appeal.   Freeman has now filed a “Memorandum of Law in Support of Motion to Appeal Single Justice Denial of Petitioner's Motion for Leave.”

It is unclear whether what Freeman filed is intended as a brief or as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).  Rule 2:21 does not apply here because he is not challenging an interlocutory ruling of the trial court.   Regardless whether rule 2:21 applies, however, Freeman cannot appeal to the full court.   The single justice's decision, acting as a gatekeeper pursuant to G.L. c. 278, § 33E, is final and unreviewable.  Commonwealth v. Scott, 437 Mass. 1008, 770 N.E.2d 474 (2002).  Commonwealth v. Ambers, 397 Mass. 705, 710-711, 493 N.E.2d 837 (1986), and cases cited.

Appeal dismissed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

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