Commonwealth v. Nesbitt

945 N.E.2d 843, 459 Mass. 1005, 2011 Mass. LEXIS 166

Opinion

The defendant, Ralph Nesbitt, was convicted of murder in the first degree and armed burglary and sentenced to life in prison. We affirmed the convictions. Commonwealth v. Nesbitt, 452 Mass. 236 (2008). Nesbitt subsequently filed several postconviction motions in the trial court, including motions for a new trial, discovery, and funds for experts. The motions were denied, and he then applied to a single justice of this court for leave to appeal from that denial pursuant to G. L. c. 278, § 33E. The single justice denied the application. Nesbitt purports to appeal from the single justice’s ruling. He has also filed a motion to stay the appeal while he pursues an ineffective assistance of counsel claim in the trial court. The stay was granted on January 28, 2011. The Commonwealth has moved to vacate the stay and dismiss the appeal.

The single justice’s decision, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is final and unreviewable. Commonwealth v. Scott, 437 Mass. 1008 (2002). Commonwealth v. Ambers, 397 Mass. 705, 710-711 (1986), and cases cited. See Commonwealth v. Gunter, 456 Mass. 1017 (2010). Nesbitt cannot appeal to the full court (and, accordingly, no stay is warranted). The stay entered on January 28 is vacated and the appeal is dismissed.

So ordered.