Commonwealth v. Cook

In support of his appeal, Cook relies on Haberek v. Commonwealth, 421 Mass. 1005 (1995), a case in which, without explanation, the court entertained an appeal following the denial of a gatekeeper petition. There, as here, the defendant was represented by the same counsel at trial and on appeal and argued that he could not, therefore, have previously raised his ineffective assistance claim. Id. We decline to follow the Haberek case. The single justice in this case considered Cook’s claims “[concerning the issues underlying *1024[the] claims of ineffective assistance of . . . counsel,” and determined that “the proposed appeal of those issues lacks merit and fails to present a ‘new and substantial question’ warranting leave to appeal” and that “[a]s such, [Cook] cannot prevail on his claims of ineffective assistance of trial counsel predicated on those underlying legal issues.” That decision, 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).

Cook’s assertion that he could not have previously raised his ineffective assistance of counsel claim, see Commonwealth v. Egardo, 426 Mass. 48, 49-50 (1997), “ignores not only the nature of plenary review, see G. L. c. 278, § 33E, but also the single justice’s determination as gatekeeper that the claim of ineffective assistance was not substantial.” Commonwealth v. Herbert, 445 Mass. 1018, 1018-1019 (2005), quoting Commonwealth v. Scott, supra. Cook cannot appeal to the full court.

Appeal dismissed.

The case was submitted on briefs.