RYA ZOBEL, District Judge
Petitioner, Joseph P. Correia, requests a writ of Habeas Corpus on the ground that his conviction of murder in the first degree in 1978 was tainted by several errors of constitutional dimensions. Until the filing of this petition, the history of this case was written entirely in the state courts. It encompasses a direct appeal from the conviction as well as five separate motions for a new trial, all of which were denied at the trial level and, if appealed, on appeal. Following the last unsuccessful appeal, petitioner filed the instant petition.
The matter is before me on petitioner's objections to the Report of the Magistrate Judge on the merits of the petition and her Recommendation that the petition and petitioner's motion for an evidentiary hearing be denied. The objections are overruled.
A main focus of petitioner's argument on the merits and in support of these objections is that the state courts, and now the Magistrate Judge, got the facts wrong. The argument revolves around two issues, the identification of petitioner by two eye witnesses and misconduct of the prosecutor, largely by allegedly withholding exculpatory evidence. From these issues flows a third, the charge that counsel at various stages of these proceedings were ineffective for failing to properly address the identification and misconduct allegations. The Magistrate Judge wrote a thorough and thoughtful report in which she carefully rehearses the facts as determined by the several state courts. Based on those facts and a correct articulation of the standard of review by a habeas court, she recommends denial of the petition. Petitioner, in his objections, provides a detailed and exhaustive narrative of the facts as he sees them, but the problem with that narrative and the argument based thereon, is that it is not open to this court on habeas review to retry the case and make findings of fact. Accordingly, the court approves the Report and accepts the Recommendation.
An independent basis exists for denial of the petition. As noted above, petitioner filed five successive motions for a new trial. The trial judge denied the fifth and last on the ground that the claims had been waived. A single justice of the Supreme Judicial Court of Massachusetts denied leave to appeal. She cited a statute, Mass. Gen Laws ch. 278 § 33E that provides:
"[I]f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a
new and substantial question which ought to be determined by the full court." Emphasis added
Because the single justice determined that petitioner's appeal from the trial court's denial of his fifth motion for a new trial raised no new and substantial question, she declined to forward the appeal. Since that disposition of the case is based on "an independent and adequate state procedural rule, federal habeas review of the claims is barred. . . ." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The petition for a writ of habeas corpus is denied. Judgment may be entered accordingly.