451 Mass. 1009

May 14, 2008

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The defendant, Robert E. Monteiro, was convicted of murder in the first degree and sentenced to life in prison. We affirmed the conviction. Commonwealth v. Monteiro, 396 Mass. 123 (1985). Monteiro's first motion for a new trial, in 1996, was denied by a judge in the Superior Court. In 2006, Monteiro filed a second motion for a new trial. That motion was also denied and Monteiro then applied to a single justice of this court for leave to appeal from the denial, pursuant to G. L. c. 278, § 33E. The single justice considered Monteiro's claims of ineffective assistance of counsel and the issues underlying those claims and determined that they were without merit and did not raise any "new and substantial" issues that ought to be considered by this court. Monteiro has appealed from the single justice's ruling. The Commonwealth has moved to dismiss Monteiro's appeal.

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 (2002). Commonwealth v. Ambers, 397 Mass. 705, 710-711 (1986), and cases cited. Monteiro's assertion that he could not have previously raised his ineffective assistance of counsel claim because his trial and appellate counsel were employed by the same agency, Commonwealth v. Egardo, 426 Mass. 48, 49-50 (1997), "ignores not only the nature of plenary review, see G. L. c. 278, § 33E, but also the single justice's determination as gatekeeper that the claim of ineffective assistance was not substantial." Commonwealth v. Herbert, 445 Mass. 1018, 1018-1019 (2005), quoting Commonwealth v. Scott, supra. See also Commonwealth v. Cook, 447 Mass. 1023, 1024 (2007). Monteiro cannot appeal to the full court.

Appeal dismissed.

Page 1010

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

Robert E. Monteiro, pro se.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.