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SJC-12417

                COMMONWEALTH   vs.   RAYMOND COLON.


                          May 24, 2018.


Supreme Judicial Court, Superintendence of inferior
     courts. Practice, Criminal, Capital case.

     Raymond Colon purports to appeal from the judgment of a
single justice of this court pursuant to the gatekeeper
provision of G. L. c. 278, § 33E, denying leave to appeal from
the denial of his fourth motion for a new trial on charges of
murder in the first degree and other offenses. 1 The single
justice also denied Colon's two ancillary motions to transfer
his gatekeeper petition, either to the full court or to the
Superior Court. The Commonwealth has moved to dismiss the
purported appeal. 2 We agree that the appeal must be dismissed,
as it is well established that the decision of the gatekeeper is
final and unreviewable. See, e.g., Commonwealth v. Robinson,
477 Mass. 1008, 1008 (2017), cert. denied, 537 U.S. 980 (2018).
In addition, in the circumstances of this case, there was no
error or abuse of discretion in denying the ancillary motions.
His ancillary motions had no "realistic potential for
demonstrating the existence of a new and substantial question

     1 We affirmed Colon's convictions, as well as the denial of
his first motion for a new trial, after plenary review in 2007.
Commonwealth v. Colon, 449 Mass. 207, cert. denied, 552 U.S.
1079 (2007). Single justices of this court denied leave to
appeal from the denial of Colon's second and third motions for a
new trial.

     2 Colon also filed what appears intended to be a memorandum
and appendix pursuant to S.J.C. Rule 2:21. That rule is
inapplicable here, as Colon is not seeking relief from any
interlocutory ruling of the trial court.
                                                                  2


appropriate for appeal," Parker v. Commonwealth, 448 Mass. 1021,
1023 (2007), quoting Fuller v. Commonwealth, 419 Mass. 1002,
1003 (1994), particularly as it appears that Colon raised the
same claim in his fourth motion -- that the court room was
improperly closed during jury selection -- as he did in a prior
motion. In sum, no appeal lies from the judgment of the single
justice.

                                   Appeal dismissed.


     The case was submitted on briefs.
     Raymond Colon, pro se.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
