Opinion
No. SJC-10125.
May 9, 2008.
Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, New trial, Capital case.
The case was submitted on the papers filed, accompanied by a memorandum of law.
Keith Niemic, pro se.
Craig A. Souza, Assistant District Attorney, for the Commonwealth.
Rescript Opinions.
The defendant, Keith Niemic, was convicted of murder in the first degree and sentenced to life in prison. We affirmed the conviction. Commonwealth v. Niemic, 427 Mass. 718 (1998). Niemic subsequently filed three motions for a new trial, in the Superior Court, all of which were denied, as were motions to reconsider the denial of the second and third motions. Niemic then applied to a single justice of this court for leave to appeal from the denial of the third motion for a new trial, pursuant to G.L. c. 278, § 33E. The single justice determined that Niemic had failed to establish a "substantial question" that ought to be considered by this court. Niemic has appealed from the single justice's ruling. The Commonwealth has moved to 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. Niemic cannot appeal to the full court. Appeal dismissed.
Niemic's motion for appointment of counsel to represent him in this "appeal" is denied.