NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11700

            COMMONWEALTH   vs.   LUIS FERNANDO RIVERA, JR.


                           October 29, 2015.


Practice, Criminal, Postconviction relief, Disqualification of
     judge.


     The defendant, Luis Fernando Rivera, Jr., was convicted on
two indictments charging murder in the first degree and one
indictment charging unlawful carrying of a firearm. See
Commonwealth v. Rivera, 424 Mass. 266 (1997), cert. denied, 525
U.S. 934 (1998). After we affirmed the convictions, a Superior
Court judge denied the defendant's motion for a new trial, and a
single justice of this court, on December 14, 2004, denied his
application for leave to appeal, pursuant to G. L. c. 278,
§ 33E. In May, 2014, the defendant filed a motion in the county
court asking the same single justice to reconsider his 2004
ruling and, on reconsideration, to recuse himself and to assign
the matter to a different justice. The single justice allowed
the motion to reconsider, denied the request for recusal, and,
on reconsideration, again denied the application for leave to
appeal. The defendant appealed.

     In an unpublished order, we allowed this appeal to proceed
as to the recusal issue only. We stated that it would be
incumbent on the defendant to demonstrate that his request for
recusal was timely, and that the single justice abused his
discretion in denying the request.1

    1
       The order also stated: "If Rivera prevails on appeal with
respect to the recusal issue, then the single justice's order on
the underlying application will need to be vacated and the
matter assigned to a different single justice. If Rivera's
recusal argument fails on appeal, however, then his request for
                                                                   2



     Appealability of recusal ruling. A single justice's denial
of an application for leave to appeal pursuant to the gatekeeper
provision of G. L. c. 278, § 33E, is "final and unreviewable."
See Commonwealth v. Companonio, 472 Mass. 1004, 1005 (2015), and
cases cited ("It cannot be appealed to the full court; it is not
subject to review under G. L. c. 211, § 3; and it cannot be
collaterally attacked"). In very limited circumstances,
however, involving certain types of motions that are ancillary
to the gatekeeper application and "intended to enhance the
likelihood that a single justice . . . , acting as gatekeeper,
would allow [the defendant] to appeal from the denial . . . of
his . . . motion for a new trial," we have allowed the single
justice's rulings to be reviewed on appeal. Fuller v.
Commonwealth, 419 Mass. 1002, 1003 (1994). See Parker v.
Commonwealth, 448 Mass. 1021, 1023 n.3 (2007). The defendant's
request that the single justice recuse himself is such a motion.
If it were otherwise, a defendant whose application was denied
by a single justice who ought to have been disqualified from
ruling on the application would have no recourse. As in all
matters, a defendant who applies for leave to appeal is entitled
to a ruling from a fair and impartial judge. See S.J.C. Rule
1:22 (c), 458 Mass. 1301 (2010) ("Recusal rulings in single
justice cases are, and will continue to be, reviewable in the
regular course on appeal from any adverse final judgment in the
single justice case").

     Background. The basis for the defendant's disqualification
claim is that, in 1993, the single justice, who was a Superior
Court judge at that time, allowed a codefendant's motion to
dismiss the indictments against him. The codefendant, Jose
Pacheco, had testified as an eyewitness for the Commonwealth
against the defendant at the defendant's trial. See Rivera, 424
Mass. at 267 n.2 (describing Pacheco's testimony that "he was an
unwilling participant who drove the vehicle on pain of threat to
his and his family's safety"). Subsequently, at a brief
nonevidentiary hearing on Pacheco's motion to dismiss, the
Commonwealth conceded that he had acted under duress when he


review by the full court of the single justice's order denying
his application will need to be dismissed, under 'the well-
settled principle that the decision of a single justice, acting
as a gatekeeper pursuant to G. L. c. 278, § 33E, is final and
unreviewable. See Dickerson v. Attorney Gen., 396 Mass. 740,
742 (1986); Leaster v. Commonwealth, 385 Mass. 547, 548 (1982).'
Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010)."
                                                                   3


participated in the murders, which was consistent with its
position at the defendant's trial. Concluding that duress was a
defense to murder -- under the law as it was at that time2 -- the
single justice dismissed the indictments against Pacheco on the
ground that the Commonwealth would be unable to disprove duress
at trial.3

     Years later, in 2003, the defendant moved for a new trial
in the Superior Court, claiming that Pacheco had recanted his
testimony and now denied being an eyewitness to the murders.
The defendant also alleged errors in the instructions on
reasonable doubt and ineffective assistance of counsel. The
judge who presided over the defendant's trial (not the single
justice) denied the motion without an evidentiary hearing,
stating that he had a "fairly clear memory" of the testimony and
that he did not believe Pacheco's alleged recantation. The
defendant then applied in the county court for leave to appeal
from that ruling, pursuant to G. L. c. 278, § 33E. The single
justice denied the defendant's gatekeeper application in 2004.
In 2014, the defendant moved for reconsideration of the single
justice's ruling, raising for the first time his claim that the
single justice ought to have recused himself because of his
ruling, as a Superior Court judge, allowing Pacheco's motion to
dismiss in 1993.

     Discussion. A judge's decision not to recuse himself is
reviewable for abuse of discretion. See Haddad v. Gonzalez, 410
Mass. 855, 862 (1991). When presented with "a question of his
capacity to rule fairly, the judge [must] consult first his own
emotions and conscience." Lena v. Commonwealth, 369 Mass. 571,
575 (1976). Implicit in the single justice's ruling in this
case is that he was satisfied that he could act "fairly and
impartially." Haddad, supra at 862. See King v. Grace, 293
Mass. 244, 247 (1936). In addition, a judge must "attempt an
objective appraisal of whether this was a proceeding in which
'his impartiality might reasonably be questioned.'" Haddad,

     2
       The law has since changed. See Commonwealth v. Vasquez,
462 Mass. 827, 835 (2012) (reviewing cases and rejecting duress
as defense to murder).
     3
       The issue before the single justice at that time was not
Jose Pacheco's credibility, but rather legal principles of
judicial estoppel and duress as a defense to murder. See Choy
v. Commonwealth, 456 Mass. 146, 154 n.12, cert. denied, 562 U.S.
986 (2010).
                                                                   4


supra, quoting S.J.C. Rule 3:09, Canon 3 (C) (1) (a), 386 Mass.
811 (1981). In this case, the defendant contends that because
the single justice, as a Superior Court judge in 1993, had
dismissed indictments against Pacheco, the single justice's
impartiality in ruling on the defendant's gatekeeper application
in 2004 could be questioned. We disagree.

     The single justice, in the case against Pacheco in the
Superior Court, made neither credibility determinations nor
factual findings. His order was based on a legal ruling that
the Commonwealth was estopped from denying Pacheco's claim that
he acted under duress -- because it consistently had supported
that testimony during the prosecution of the defendant (and
other codefendants) -- and his ruling that duress was a defense
to murder. As the single justice in the defendant's case in
2004, he was not called on to review his 1993 order or the legal
principles on which it was based.4 Information acquired by a
judge in his or her judicial role in earlier proceedings, as
opposed to from some extrajudicial source, "weighs heavily in
favor of the judge's decision not to disqualify himself."
Haddad, 410 Mass. at 863, quoting Commonwealth v. Dane
Entertainment Servs., 18 Mass. App. Ct. 446, 450 (1984). See

     4
       The defendant relies in part on Rice v. McKenzie, 581 F.2d
1114 (4th Cir. 1978), in which the United States Court of
Appeals for the Fourth Circuit held that a Federal District
Court judge was disqualified from ruling on a habeas corpus case
brought by the defendant in the Federal court, because, as a
member of the State supreme court, the judge had participated in
the adjudication of the same claims brought by the defendant in
State court. That situation is distinguishable from what we
have here. In this case the single justice was not being asked
to rule on the correctness of anything he had done as a Superior
Court judge in the codefendant's case (or even on the
correctness of the trial judge's order denying the defendant's
motion for a new trial), and nothing about the defendant's
gatekeeper application depended on any findings or rulings he
had made in that case. The court in the Rice case itself
recognized the difference between these two types of situations.
See id. at 1118 (holding that judge's disqualification was
required under principle that "a judge may not sit on appeal in
review of his decisions as a trial judge," while simultaneously
acknowledging that "neither an appellate nor a trial judge is
disqualified from sitting in a case because of an earlier
decision, in which he participated, of a similar case involving
other parties").
                                                                   5


Lena, 369 Mass. at 574. Presiding over a proceeding involving a
codefendant is not necessarily a ground for disqualification.
See Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004) (recusal
not required where judge previously heard and denied
codefendant's suppression motion on basis that both defendant's
and codefendant's testimony not credible); Commonwealth v.
Campbell, 5 Mass. App. Ct. 571, 587 (1977). Additionally, the
"passage of time certainly can be a factor leading to a
conclusion that any concerns about a judge's impartiality would
be unreasonable." Commonwealth v. Morgan RV Resorts, LLC, 84
Mass. App. Ct. 1, 12 (2013).

     All of these considerations combine in this case to
persuade us that there is no reasonable basis to question the
single justice's impartiality. The single justice presided over
a nonevidentiary hearing involving a codefendant years before
the defendant's gatekeeper application was filed, and he made a
strictly legal determination that the Commonwealth would not be
able to sustain its burden at trial against the codefendant.

     Furthermore, the defendant failed to raise this recusal
issue with the single justice for years after he admittedly
became aware of the single justice's involvement in Pacheco's
case.5 Although he appears to have raised the issue
(unsuccessfully) in the Federal court during that time, in a
habeas corpus action, he did not bring it to the single
justice's attention. In these circumstances, the single justice
properly could have denied the motion because it was untimely.
See Commonwealth v. Gunter, 456 Mass. 1017, 1018 (2010), S.C.,
459 Mass. 480, cert. denied, 132 S. Ct 218 (2011) (defendant may
"file a timely motion for reconsideration" of denial of
gatekeeper petition with single justice); Demoulas v. Demoulas,
432 Mass. 43, 50 (2000) (posttrial recusal motions presumptively
untimely). As we have said, "parties seeking disqualification
of a judge . . . have an obligation to move at the earliest
possible opportunity after learning of the grounds for the
judge's recusal." Demoulas, supra at 52.

     Conclusion. The single justice's order declining to recuse
himself is affirmed, and, consequently, the defendant's appeal


     5
       The defendant's claim that he first learned of the single
justice's involvement in Pacheco's case "long after" the
gatekeeper application had been denied is belied by the record.
In 2005, the defendant filed an affidavit in Federal court
describing the single's justice's involvement.
                                                                   6


from the single justice's order denying the application pursuant
to G. L. c. 278, § 33E, must be dismissed. See note 1, supra.

                                   So ordered.


     Chauncey B. Wood for the defendant.
     Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
