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SJC-12263

             COMMONWEALTH   vs.   ROBERT E. MONTEIRO.


                         April 25, 2019.


Practice, Criminal, Postconviction relief, Capital case.
     Committee for Public Counsel Services.


     This case is before us on appeal from a single justice's
denial of a motion filed by Robert E. Monteiro for the
appointment of counsel in connection with a gatekeeper
application that he had filed in the county court pursuant to
G. L. c. 278, § 33E. We affirm.

     Monteiro was convicted of murder in the first degree and
related charges in 1983, and this court affirmed the convictions
after plenary review. See Commonwealth v. Monteiro, 396 Mass.
123, 125 (1985). Since then, he has filed several motions in
the Superior Court for postconviction relief, as summarized by
this court in Monteiro v. Commonwealth, 473 Mass. 1007, 1007
(2015). In that decision, we directed a single justice of this
court to consider (a) Monteiro's gatekeeper application for
leave to appeal from the Superior Court's denial of his motion
for the appointment of counsel to prepare and file a motion for
forensic testing pursuant to G. L. c. 278A, and (b) his request
to have counsel appointed for purposes of the G. L. c. 278,
§ 33E, application. Id. at 1008.

     On remand, the single justice denied Monteiro's gatekeeper
application and also denied his request for the appointment of
counsel. Monteiro appealed. The Commonwealth filed a motion to
dismiss his appeal on the ground that the decision of the single
justice on the gatekeeper application was final and
unreviewable. We allowed the appeal to go forward, but only on
                                                                   2


the limited issue of the single justice's denial of Monteiro's
ancillary motion for the appointment of counsel in connection
with his G. L. c. 278, § 33E, application. See Parker v.
Commonwealth, 448 Mass. 1021, 1022 (2007); Fuller v.
Commonwealth, 419 Mass. 1002, 1003 (1994).

     A defendant does not have a constitutional right to
appointed counsel in connection with a new trial motion or in
connection with a G. L. c. 278, § 33E, gatekeeper application.
See Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). See
also Parker, 448 Mass. at 1023. In these circumstances, "the
decision whether to appoint counsel remains discretionary with
the judge," and this court will review a decision declining to
appoint counsel only for an abuse of discretion and to determine
whether it "deprive[d] an indigent defendant of meaningful
access [to postconviction review] . . . or result[ed] in
fundamental unfairness." Conceicao, supra at 262.

     Here, Monteiro has failed to show that the single justice
abused her discretion, or that the denial of appointed counsel
deprived him of meaningful access to review of his gatekeeper
application or resulted in any kind of unfairness. The single
justice properly considered, among other things, the fact that
the Committee for Public Counsel Services had already screened
Monteiro's case and had declined to provide him with
representation in 2014, well after the 2012 effective date of
G. L. c. 278A. Moreover, the single justice, when acting on the
gatekeeper application under G. L. c. 278, § 33E, was in a good
position to assess whether the appointment of counsel might have
added anything meaningful to the application. The order denying
Monteiro's motion for the appointment of counsel is affirmed.

                                   So ordered.


     The case was submitted on briefs.
     Robert E. Monteiro, pro se.
     Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
