Posts tagged "1017815"

Commonwealth v. Rivera (Lawyers Weekly No. 10-178-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11700   COMMONWEALTH  vs.  LUIS FERNANDO RIVERA, JR. October 29, 2015. Practice, Criminal, Postconviction relief, Disqualification of judge.     The defendant, Luis Fernando Rivera, Jr., was convicted on two indictments charging murder in the first degree and one indictment charging unlawful carrying of a firearm.  See Commonwealth v. Rivera, 424 Mass. 266 (1997), cert. denied, 525 U.S. 934 (1998).  After we affirmed the convictions, a Superior Court judge denied the defendant’s motion for a new trial, and a single justice of this court, on December 14, 2004, denied his application for leave to appeal, pursuant to G. L. c. 278, § 33E.  In May, 2014, the defendant filed a motion in the county court asking the same single justice to reconsider his 2004 ruling and, on reconsideration, to recuse himself and to assign the matter to a different justice.  The single justice allowed the motion to reconsider, denied the request for recusal, and, on reconsideration, again denied the application for leave to appeal.  The defendant appealed.   In an unpublished order, we allowed this appeal to proceed as to the recusal issue only.  We stated that it would be incumbent on the defendant to demonstrate that his request for recusal was timely, and that the single justice abused his discretion in denying the request.[1]   Appealability of recusal ruling.  A single justice’s denial of an application for leave to appeal pursuant to the gatekeeper provision of G. L. c. 278, § 33E, is “final and unreviewable.”  See Commonwealth v. Companonio, 472 Mass. 1004, 1005 (2015), and cases cited (“It cannot be appealed to the full court; it is not subject to review under G. L. c. 211, § 3; and it cannot be collaterally attacked”).  In very limited circumstances, however, involving certain types of motions that are ancillary to the gatekeeper application and “intended to enhance the likelihood that a single justice . . . , acting as gatekeeper, would allow [the defendant] to appeal from the denial . . . of his . . . motion for a new trial,” we have allowed the single justice’s rulings to be reviewed on appeal.  Fuller v. Commonwealth, 419 Mass. 1002, 1003 (1994).  See Parker v. Commonwealth, 448 Mass. 1021, 1023 n.3 (2007).  The defendant’s request that the single justice recuse himself is such a motion.  If it were otherwise, a defendant whose application was denied […]

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Posted by Massachusetts Legal Resources - October 29, 2015 at 6:42 pm

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