Commonwealth v. Robinson, 75 N.E.3d 1112

75 N.E.3d 1112

Mass.

2017

DERRICK WASHINGTON vs. JOSEPH GAGLIANI & others.

Supreme Judicial Court of Massachusetts

May 25, 2017

477 Mass. 1008

appeal, noting that once the tribunal had rendered its decision, “any further proceedings belonged in the Federal court.” Id.

So too here. The Superior Court and the Appeals Court had no jurisdiction after the tribunal‘s ruling to act further with respect to that ruling. At most, the Superior Court might have had the authority to rule on Washington‘s motion to reduce the amount of the bond, but even that is questionable. See Pallazola v. Rucker, 602 F. Supp. 459, 460 (D. Mass. 1984) (Superior Court judge who presided over tribunal denied plaintiff‘s motion to waive bond; plaintiff then moved in Federal court for reconsideration of tribunal ruling as well as for reconsideration of action on motion to reduce bond). The place for Washington to pursue his claims and to challenge the tribunal‘s ruling, if he wished to do so, was in the Federal courts. Indeed, as we have noted, the Federal court proceedings continued even as Washington was attempting to pursue his appeal to the Appeals Court.

Washington can receive the review to which he is entitled in the Federal courts. When the judgment in the Federal action becomes final,⁴ he will have an opportunity to appeal from it and challenge the dismissal of his claim against Gagliani, just as he would have been entitled to do if the action had originated in the State court. In short, he has not been prejudiced by any of the events in the State courts that ensued after the tribunal issued its decision.

For these reasons, there was no error in the single justice‘s denial of Washington‘s G. L. c. 211, § 3, petition.

Judgment affirmed.

Derrick Washington, pro se.

Tory A. Weigand for the defendant.

COMMONWEALTH vs. PAUL ROBINSON.

Supreme Judicial Court of Massachusetts

May 25, 2017

477 Mass. 1008

Superintendence of inferior courts. Practice, Criminal, Capital case.

Along with a codefendant, Paul Robinson was convicted of two counts of murder in the first degree and two counts of assault with intent to rob in 1969. After plenary review, this court affirmed the convictions. Commonwealth v. McGrath, 358 Mass. 314 (1970), S.C., 408 Mass. 245 (1990) and 437 Mass. 1002, cert. denied, 537 U.S. 980 (2002). Robinson has since filed several motions for a new trial, all of which have been denied. After the denial of his most recent (seventh) such motion, Robinson sought leave to appeal pursuant to the gatekeeper provision of G. L. c. 278, § 33E. A single justice of this court concluded that the motion failed to present a “new and substantial question” and therefore denied such leave. Robinson filed a notice of appeal to the full court from the single justice‘s ruling, and the Commonwealth moved to dismiss. Robinson asserted in opposition that his appeal ought to be permitted to proceed despite the longstanding rule that the decision of the gatekeeper is “final and unreviewable.” E.g., Commonwealth v. Vinnie, 475 Mass. 1011, 1011 (2016), and cases cited. We gave Robinson an opportunity to explain the basis for his position in a preliminary statement of no more than five pages. Robinson has responded with an eleven-page statement of issues, in which he argues essentially that the gatekeeper process leads to arbitrary results and, more particularly, that his appeal was not allowed to proceed whereas other defendants’ appeals were.¹ This is merely a recasting of the equal protection challenge we rejected in Napolitano v. Attorney Gen., 432 Mass. 240, 241-242 (2000). We reject it again here. Robinson received plenary review of his convictions under § 33E on direct appeal, and he has offered no reason to suppose that his seventh motion for a new trial raised any new and substantial issue that was not or could not have been presented in any of the previous six. There is no hint of arbitrariness in this case. He also has not offered any reason to believe that the “single justice erred by denying [his] gatekeeper petition on procedural grounds.” Commonwealth v. Nassar, 454 Mass. 1008, 1009 n.2 (2009). Finally, we reject Robinson‘s argument that § 33E does not bar an appeal from the decision of the gatekeeper. “The special function of the single justice mandated by the statute would be futile and meaningless if his or her rulings were subject to appeal before the full court.” Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Leaster v. Commonwealth, 385 Mass. 547, 548 (1982). We see no reason to depart from our longstanding and well-established rule. See Companiono, supra, and cases cited.²

Appeal dismissed.

David J. Nathanson for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

COMMONWEALTH vs. GEORGE MCGRATH.

Supreme Judicial Court of Massachusetts

May 25, 2017

477 Mass. 1009

Superintendence of inferior courts. Practice, Criminal, Capital case.

George McGrath purports to appeal from the decision 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 motion for a new trial on charges of murder in the first degree and assault with intent to rob.¹ “A defendant who is denied leave to appeal from a single justice acting as a gatekeeper . . . has no right to appeal from the single justice‘s ruling denying leave. The single justice‘s ruling is ‘final and unreviewable.‘” Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).

Notes

It appears that Robinson intended the memorandum to apply to both his own appeal and that of his codefendant, who similarly purports to appeal from a decision of the gatekeeper. See . He incorrectly asserts that we issued identical orders to him and to his codefendant, affording each of them five pages. In fact, we issued one order, to Robinson alone. McGrath‘s convictions were affirmed on direct appeal after plenary review. . In addition, we reversed the allowance of McGrath‘s previous motion for a new trial. , cert. denied, .

Robinson‘s reliance on , is misplaced. That case involved a direct appeal from a conviction of murder in the second degree and from an order denying a motion to reduce the verdict, not a final and unreviewable decision of the gatekeeper pursuant to G. L. c. 278, § 33.

It does not appear that any separate final judgment has entered as to Gagliani. See Fed. R. Civ. P. 54(b). The Federal action remains pending as to the other named defendants.

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