447 Mass. 1017

November 9, 2006

After his conviction was reversed, Commonwealth v. Vizcarrondo, 427 Mass. 392 (1998), the defendant, Ramon Luis Vizcarrondo, was retried and again convicted of murder in the first degree. We affirmed that conviction. Commonwealth v. Vizcarrondo, 431 Mass. 360 (2000). Vizcarrondo subsequently filed a motion for a new trial in the Superior Court, arguing that

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the instructions on involuntary manslaughter were incorrect and that he was deprived of the effective assistance of trial and appellate counsel. The trial judge denied the motion. Pursuant to the gatekeeper provision of G. L. c. 278, § 33E, Vizcarrondo applied to a single justice of this court for leave to appeal from the denial of the motion. The single justice denied the application on the ground that the proposed appeal lacked merit and presented no "new and substantial question" warranting leave to appeal. Vizcarrondo has appealed from the single justice's ruling.

The Commonwealth has moved to dismiss the appeal. [Note 1] As we have said many times, "the decision of the single justice, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is 'final and unreviewable.' " Commonwealth v. Herbert, 445 Mass. 1018, 1018 (2005), quoting Commonwealth v. Perez, 442 Mass. 1019, 1019 (2004). See Napolitano v. Attorney Gen., 432 Mass. 240, 241 (2000), citing Commonwealth v. Ambers, 397 Mass. 705, 710-711 (1986), and Dickerson v. Attorney Gen., 396 Mass. 740, 742 (1986). Vizcarrondo cannot appeal to the full court from the denial of his application.

Appeal dismissed.

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

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.


[Note 1] Vizcarrondo has neither filed a brief nor responded to the Commonwealth's motion.