Commonwealth v. Ralph Nesbitt
459 Mass. 1005
April 13, 2011
Supreme Judicial Court
Criminal, Appeal, Appeal to Single Justice
Facts
The defendant was convicted of murder in the first degree and armed burglary and sentenced to life in prison. The convictions were affirmed. Nesbitt thereafter filed several post-conviction motions in the trial court, including motions for a new trial, discovery, and for 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 this 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 moved to vacate the stay and dismiss the appeal.
The single justice's decision, acting as a gatekeeper, is final and unreviewable. Commonwealth v. Scott, 437 Mass. 1008 (2002). 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.
