dissenting.
I fully agree with the court that limiting rights of appeal is not, per se, a denial of a fundamental right. Nor are capital defendants a suspect class whose claims are subject to special scrutiny — -there need only be a rational basis for disparity, rough, as distinguished from a searching measurement. And while I do not agree that “the most urgent category ... of claims [are] those that are ‘new and substantial,’”— feeling, rather, that the most urgent are those that present a substantial risk of a miscarriage of justice, regardless of whether they are truly new or merely previously overlooked — again, that would not be important if there were a rational basis for treating capital defendants differently. In my opinion, there is no basis at all with respect to claims indicating a possible miscarriage of justice, described in Criminal Rule 30(b), where they can be pursued, if it appears that justice may not have been done.” Capital defendants lose out, though they have received what comes to nothing.
Any defendant whose original appeal has failed may move in the superior court for a new trial under this rule if he has a claim that qualifies, and may, normally, thereafter, appeal to the Appeals Court under Rule 30(c)(8). If, however, he was a capital defendant, a pre-condition to appeal is a finding by a single justice that his point is new as well as substantial. “New” means not merely not considered before, but that could not have been considered before, and the statutory word “and” is, of course, conjunctive. Commonwealth v. Ambers, 397 Mass. 705, 493 N.E.2d 837 (1986). The statute is “unequivocal,” Leaster v. Commonwealth, 385 Mass. 547, 549, 432 N.E.2d 708, 709 (1982), so unequivocal, in fact, that it is a substantive as well as a procedural bar. In Commonwealth v. Johnson, 399 Mass. 14, 502 N.E.2d 506 (1987), the single justice allowed the appeal, and the court, remarking that it was doing so for future illumination of the bar, stated that defendant’s point was partially correct, but denied the appeal because, as to him, it was not new. A noncapital defendant, on the other hand, may obtain relief in the Appeals Court even though his point is not new. Commonwealth v. Buckley, 17 Mass.App.Ct. 373, 458 N.E.2d 781, review denied, 391 Mass. 1103, 461 N.E.2d 1219 (1984).
This is surely a difference of substance. The capital defendant has merely a bird in the bush, a hope the court may discover his point, and when the bird escaped notice, defendant has no further appeals. The court’s statement that plenary review “assur[es] ... review” is utopian. Moreover, as to miscarriage of justice — Rule 30— claims, a capital defendant may not be alone even as to possessing a bird in the bush; so may others, but who, however, get fundamentally better treatment than he does.
The asserted reason for the distinction is that capital defendant gets something in exchange. Although the first to speak in constitutional terms of a “rational basis,” Dickerson v. Attorney General, 396 Mass. 740, 743, 488 N.E.2d 757, 759 (1986), is not the first time the court held § 33E’s special restriction on capital defendants warranted because of the special review afforded them under the earlier part of the statute. In Leaster v. Commonwealth, 385 Mass. at 549, 432 N.E.2d at 709, the court held the “gatekeeper” provision was justified because capital defendants “received the plenary review under § 33E, which is designed to avoid miscarriage of justice and which is peculiarly available in first degree murder cases.” (Emphasis supplied.) Except that a capital defendant can appeal directly to the Supreme Judicial Court and others may end at the Appeals Court level, this is the sole basis given for saying that capital defendants cannot complain of unequal protection.
*1122Singularly, on the same day as Leaster, March 11, 1982, the court decided, in Greene v. Commonwealth, 385 Mass. 1008, 432 N.E.2d 706, that a defendant convicted of murder in the second degree could appeal free of the gatekeeper provision. I say singularly because under § 33E as it existed at the time of Greene’s conviction, as a defendant indicted and tried for first degree murder he received plenary review even though he had been convicted below only of second degree. See Commonwealth v. Hodge (No. 2), 380 Mass. 858, 867, 406 N.E.2d 1015, 1020-21 (1980). Thus on the same day that the court justified curtailing a subsequent appeal by Leaster, convicted of first degree murder, because plenary review was “peculiarly available” to him, it imposed no restriction on Greene, convicted of second degree murder, although he had had precisely that same review.
Greene was a rescript opinion. It was not, however, a single aberration, but was followed thereafter in full opinions. Commonwealth v. Zezima, 387 Mass. 748, 443 N.E.2d 1282 (1982); Commonwealth v. Festa, 388 Mass. 513, 447 N.E.2d 1 (1983). It seems too obvious a question to ask, but how can it be rational to deprive a capital defendant of a privilege because he received an alternative benefit, while a lesser defendant received the benefit and the privilege, both?
The court’s adhering to the letter of the statute, at the potential cost of capital defendants, occurred again in the recent, post-Dickerson, case of Commonwealth v. Lattimore, 400 Mass. 1001, 507 N.E.2d 754 (1987). There the defendant had been convicted of first degree murder. He appealed, receiving plenary review, and his conviction was reduced to second degree. Thereafter he moved in the Superior Court for a new trial under Rule 30(b) and, the motion being denied, appealed to the Appeals Court. When that court appointed counsel for him to prosecute the appeal, the Commonwealth appealed to the Supreme Judicial Court, claiming the post-conviction appeal needed single justice approval. The court disagreed. Since he now stood convicted of second degree only, the gatekeeper provision and its requirements did not apply. Yet, obviously, had his conviction not been reduced, the plenary review would have meant no further appeals on claims not new. Again, a noncapital defendant with both worlds.
This was in accordance with a strict reading of the statute, but I must think that the statute leads to attention to the bath water rather than the baby. Its effect is not simply a screening procedure. To recapitulate, compare defendant Lattimore (400 Mass. 1001, 507 N.E.2d 754), ante, with defendant Johnson (399 Mass. 14, 502 N.E.2d 506).
Quite apart from these holdings directly applying the statute itself, the court is liberal on the direct appeal of every defendant with respect to claims involving a miscarriage of justice. In Hodge (No. 2), a second degree case in which defendant contended that the old statute applied, so that the court should consider miscarriage of justice claims not raised below, the court said, 380 Mass. at 868 n. 2, 406 N.E.2d at 1021 n. 2, “We observe that whether or not a case has § 33E statutory eligibility, we have long since applied a similar standard of review as in part 3 above.” Part 3 reads as follows,
Ordinarily, such inattention of counsel would preclude review of the issue on our part. Commonwealth v. Johnson, 379 Mass. [177, 396 N.E.2d 974] (1979). Commonwealth v. Cook, 351 Mass. 231, 237 [, 218 N.E.2d 393], cert. denied, 385 U.S. 981 [, 87 S.Ct. 529, 17 L.Ed.2d 443] (1966). “Nevertheless, we are mindful that ‘in appropriate instances this court has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a decisive matter has not been raised at trial.’ ” Commonwealth v. Johnson, supra [379 Mass.] at 178 [, 396 N.E.2d 974], quoting from Commonwealth v. Conroy, 333 Mass. 751, 757 [, 133 N.E.2d 246] (1956). See Commonwealth v. Goulet, 374 Mass. 404, 415-416 [, 372 N.E.2d 1288] (1978). Therefore, we examine the defendant’s contentions under this standard.
*1123Id. 380 Mass. at 864, 406 N.E.2d at 1019. Hence, if a non-new miscarriage of justice point is discovered following a defendant’s unsuccessful appeal, there are no restrictions in Rule 30; neither the receipt of plenary review, nor § 33E itself, bars capital defendants from superior court consideration. However, since the point is not new, the capital defendant has no appeal— an unusual position, incidentally, for the judge — while the noncapital defendant can appeal freely.
Does the mere, unrealized hope that the Supreme Judicial Court will uncover points justify this serious disparity? The value of that hope has been appraised by the court itself. In not restricting second degree defendant Lattimore’s appeal, though he had received the full statutory review, it is apparent that it is the statute, and not any substantive quid pro quo, that requires cutting off an appeal. In point of fact, in Dickerson’s own case, Dickerson v. Attorney General, the court’s opinion discloses a failure to appreciate the extent of the disparity suffered by the capital defendant. As indicating the lack of “substance,” the court said, 396 Mass. at 742 n. 2, 488 N.E.2d 757, 759 n. 2,
In reviewing a postconviction motion of a noncapital defendant, the Appeals Court will not consider claims of error which could have been raised at trial or on direct appeal, but were not so raised. See Commonwealth v. Buckley, 17 Mass.App.Ct. 373, 374 [, 458 N.E.2d 781] (1984).... [T]he merits of [either] defendant’s postconviction motion will not be reached unless he presents a new and important issue to the court.
Buckley, actually held exactly the opposite. The noncapital defendant is not limited in his appeal to new claims if they involve a miscarriage of justice.
What it comes down to is this. In the Leaster-Greene decisions the court was not faced with a constitutional challenge, and, in a rescript, may not have thought deeply. I can see no other explanation for the contradiction. Thereafter there was no occasion to look back and reconsider. It was only when Dickerson put the question in equal protection terms that the court made a re-evaluation, and then it discussed procedure and misapprehended substance. I can not think that misdescribing the holding in Buckley was, in effect, a sub-silentio overruling. There is no basis in precedent, or in Rule 30(c)(8) any reason, for questioning what Buckley held with respect to Rule 30 motions. Hence I believe that we should view the disparity for what it is, and has been shown to be in the other Massachusetts cases cited, and, with great respect to the Supreme Judicial Court, not view that court as having determined that this difference in substance has a rational basis. Rather, the tenor of the opinion is simply that, because of prior familiarity with the case the special single justice procedural screening is warranted in the “[interests of judicial economy,” 396 Mass. at 744, 488 N.E.2d at 760, and that nothing of substance is lost.
If that were all, if, in fact, note 2 in Dickerson were correct rather than, with due apologies, a footnote inadvertency, I would have no problem. I realize that “rational-basis scrutiny ... is the most relaxed and tolerant form of judicial scrutiny,” City of Dallas v. Stanglin, — U.S. -, -, 109 S.Ct. 1591, 1595, and there well may be a rational basis for adopting different methods to screen out unjustified appeals. There is a wide difference, however, between limiting access to dance-halls to protect minors, and distinguishing, in the interests of judicial economy, between criminal defendants on the basis of the substance of their appeals, particularly at the cost of capital defendants who, by hypothesis, have claims in the category of miscarriage of justice that were overlooked.
I respectfully dissent.