BOBBY JOE LEASTER vs. COMMONWEALTH (and two companion cases [Note 1]).

HENNESSEY, C.J. In each of these three cases the petitioner, who is serving a life sentence for murder in the first degree, sought postconviction relief for asserted error in his conviction by filing in the Superior Court a motion under Mass. R. Crim. P. 30, 378 Mass. 900 (1979). [Note 2] In each case a Superior Court judge denied the motion after hearing. Subsequently each petitioner sought to appeal the Superior Court ruling by leave of a single justice of this court, as required by G. L. c. 278, Section 33E. [Note 3] In each case leave to appeal was denied by the single justice and the petitioner claimed an appeal to the full court from the denial. The Commonwealth moved before the full court to dismiss these appeals, and these motions to dismiss are now before us.

The Commonwealth argues that the unequivocal words of Section 33E require these dismissals. We agree. The special function of the single justice mandated by the statute would be futile and meaningless if his or her rulings were subject to appeal before the full court.

Despite our conclusion that the Commonwealth's motion to dismiss these appeals must be allowed, we recognize the

Page 549

weight of certain arguments of the petitioners. Rule 30 was adopted in 1979 as the exclusive vehicle for postconviction relief. Simultaneously, through the cooperation of the Legislature, statutory provisions for postconviction relief by means of writ of error were repealed. See former statute G. L. c. 250, Sections 1, 2, 9, 10, 11, and 12 (repealed by St. 1979, c. 344, Section 13). The petitioners observe that the statutory repeal eliminated substantial privileges of postconviction full court review, as a matter of right, which had been available for many decades to persons convicted of first degree murder as well as lesser crimes. The petitioners also argue the incongruity that, by reason of the combined effect of rule 30 and Section 33E, appellate review by the full court of Superior Court rulings on postconviction motions are available, without leave from a single justice, as to all criminal convictions except the most serious (murder in the first degree).

Against these arguments of the petitioners stand the compelling facts that the murder convictions of these three petitioners, like all first degree murder convictions appealed to us, have received not only the direct appellate review available in all criminal matters but also have received the plenary review under Section 33E, which is designed to avoid miscarriage of justice and which is peculiarly available in first degree murder cases. Commonwealth v. Leaster, 362 Mass. 407 (1972). Commonwealth v. Lacy, 371 Mass. 363 (1976). Commonwealth v. McLaughlin, 352 Mass. 218, cert. denied, McLaughlin v. Massachusetts, 389 U.S. 916 (1967). This logical underpinning is a refutation, if such is needed, of the argument that the Legislature could not have intended, despite the unequivocal language of Section 33E, inhibition of postconviction relief in first degree murder cases. Further, review should not be afforded by the full court through our powers under G. L. c. 211, Section 3, since we deal here with matters in which the Legislature has expressly limited such review. Contrast Commonwealth v. Dunigan, 384 Mass. 1, 4 (1981). We also observe that a number of other jurisdictions have similar "gatekeeper" restrictions on

Page 550

postconviction relief in criminal matters. See, e.g., Conn. Gen. Stat. Ann. Section 52-470 (West Supp. 1981); Ga. Code Ann. Section 50-127 (11) (Supp. 1981); Maine Rev. Stat. Ann. tit. 15, Section 2131 (Supp. 1981).

We have every confidence that the single justices in all such cases will allow access to the full court in meaningful matters and, similarly, will bar further proceedings in matters which do not meet the "new and substantial" test of Section 33E.

Appeals dismissed.