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SJC-12667

               COMMONWEALTH   vs.   BRUCE ANDERSON.


                         July 16, 2019.


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


     The defendant, Bruce Anderson, was convicted of murder in
the first degree by reason of deliberate premeditation and
extreme atrocity or cruelty. Commonwealth v. Anderson, 408
Mass. 803, 803-804 (1990). In 2018, he filed a motion for a new
trial, which was denied. 1 He then applied to a single justice of
this court for leave to appeal from the denial, pursuant to the
gatekeeper provision of G. L. c. 278, § 33E. The single justice
denied the application. Anderson has appealed from the single
justice's ruling, and the Commonwealth has moved to dismiss the
appeal.

     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. See 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." Commonwealth v. Gunter, 456 Mass. 1017, 1017
(2010). "A defendant who is denied leave to appeal from a
single justice acting as a gatekeeper pursuant to the last
sentence of G. L. c. 278, § 33E, has no right to appeal from the
single justice's ruling denying leave." Commonwealth
v. Companonio, 472 Mass. 1004, 1004 (2015), quoting Gunter, 456

     1 The defendant had twice previously filed a motion for a
new trial, but withdrew each of the motions before they were
acted on in the Superior Court.
                                                               2


Mass. at 1017. The defendant's attempt to appeal from the
single justice's denial of his application must therefore be
dismissed.

                                   Appeal dismissed.


     Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
     Bruce Anderson, pro se.
