Cook v. Commonwealth

Cook was convicted of felony-murder and unarmed robbery. We affirmed those convictions. See Commonwealth v. Cook, 419 Mass. 192 (1994). Cook subsequently moved for a new trial. The motion was denied by a judge in the Superior Court, and Cook 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 and we subsequently dismissed Cook’s appeal from that denial on the basis that the decision of the single justice is, pursuant to G. L. c. 278, § 33E, final and unreviewable. Commonwealth v. Cook, 447 Mass. 1023, 1024 (2006). Cook then filed his G. L. c. 211, § 3, petition in the county court, essentially rearguing the issues that he had raised in his motion for a new trial.

The decision of the single justice denying leave to appeal under G. L. c. 278, § 33E, is final and unreviewable, and Cook can not circumvent that by seeking relief pursuant to G. L. c. 211, § 3. See Leaster v. Commonwealth, 385 Mass. 547, 549 (1982) (dismissing appeals from denials by single justice pursuant to G. L. c. 278, § 33E, and noting that “review should not be afforded by the full court through our powers under G. L. c. 211, § 3, since we deal here with matters in which the Legislature has expressly limited such review”). The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.