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SJC-12771

             COMMONWEALTH   vs.   FREDERICK H. PERRY.



                       October 17, 2019.


Practice, Criminal, Capital case, Postconviction relief, Appeal.

     The defendant, Frederick Perry, was convicted of murder in
the first degree by reason of extreme atrocity or cruelty. See
Commonwealth v. Perry, 432 Mass. 214 (2000). In February 2019,
he filed, in the Superior Court, his fourth motion for a new
trial, which was denied. He 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 denied the application.
Perry has appealed from the single justice's ruling and the
Commonwealth has moved to dismiss the appeal.1

     Perry has no right to appeal from the single justice's
ruling. "A single justice, acting as a gatekeeper pursuant to
G. L. c. 278, § 33E, may allow an appeal to the full court to
proceed under that statute if the appeal presents a 'new and
substantial' question." Commonwealth v. Anderson, 482 Mass.
1027, 1027 (2019), citing Commonwealth v. Gunter, 459 Mass. 480,
487, cert. denied, 565 U.S. 868 (2011). "If the appeal fails on
either count, and the single justice denies the application,
that decision 'is final and unreviewable.'" Anderson, supra,
quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).


    1  Each of the defendant's previous motions for a new trial
was similarly denied in the trial court, as were his subsequent
applications to a single justice for leave to appeal from the
denials pursuant to G. L. c. 278, § 33E. This is the first time
that he has sought to appeal to the full court from a single
justice's ruling denying an application for leave to appeal.
Perry's attempt to appeal from the single justice's denial of
his application must therefore be dismissed.

                                   Appeal dismissed.


     Frederick H. Perry, pro se.
     Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
