Commonwealth v. Damian Gouse.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-86

COMMONWEALTH

vs.

DAMIAN GOUSE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On September 25, 2009, a Superior Court jury convicted the

defendant of unlawful possession of a firearm outside of his

residence or place of business, in violation of G. L. c. 269,

§ 10 (a).1 The defendant filed a notice of appeal on September

29, 2009. On June 28, 2010, the United States Supreme Court

decided McDonald v. Chicago, 561 U.S. 742 (2010).

1The jury also convicted the defendant of assault and
battery by means of a dangerous weapon (shod foot), in violation
of G. L. c. 265, § 15A (b), assault and battery, in violation of
G. L. c. 265, § 13A (a), and unauthorized use of a motor
vehicle, in violation of G. L. c. 90, § 24 (2) (a). The same
jury found that the defendant had committed three predicate
offenses subjecting him to enhanced sentencing as a career
criminal under G. L. c. 269, § 10G (c). Following the Supreme
Judicial Court's decision in Commonwealth v. Ashford, 486 Mass.
450 (2020), the defendant moved for a new trial. The motion
judge granted the motion and resentenced the defendant.
The defendant filed a supplemental memorandum with this

court in his direct appeal arguing that, in light of the United

States Supreme Court's decisions in McDonald and District of

Columbia v. Heller, 554 U.S. 570 (2008), placing the burden on

the defendant to produce evidence that he had a license violated

his right to own and bear a firearm under the Second Amendment

to the United States Constitution. See Commonwealth v. Gouse,

461 Mass. 787, 799-800 & n.13 (2012) (Gouse I). The Supreme

Judicial Court on its own motion took the defendant's direct

appeal on April 22, 2011. The court was not persuaded and

determined that "[n]othing in the McDonald and Heller decisions

has altered or abrogated our jurisprudence regarding the

elements of the crime of unlawful possession of a firearm or the

allocation of the burdens of production and proof with respect

to the affirmative defense of licensure." Id. at 801. The

defendant did not seek certiorari review by the United States

Supreme Court and his conviction became final in July 2012.2

2 The Supreme Judicial Court decided the defendant's case on
April 10, 2012. Gouse I, 461 Mass. at 787. The defendant's
convictions therefore became final ninety days later, when the
time the defendant could have petitioned the United States
Supreme Court for a writ of certiorari elapsed. See Beard v.
Banks, 542 U.S. 406, 411 (2004); Rule 13.1 of the Rules of the
Supreme Court (2010) ("Unless otherwise provided by law, a
petition for a writ of certiorari to review a judgment in any
case, civil or criminal, entered by a state court of last resort
. . . is timely when it is filed with the Clerk of this Court
within 90 days after entry of the judgment").

2
Following the United States Supreme Court's decision in New

York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the

Supreme Judicial Court recognized that its reasoning in Gouse I

was no longer valid. See Commonwealth v. Guardado, 491 Mass.

666, 690 (2023) (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado

II), cert. denied, 144 S. Ct. 2683 (2024). Twelve years after

the Supreme Judicial Court's decision in Gouse I, on May 8,

2024, the defendant, pursuant to Mass R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), filed a motion to reconsider

and vacate, arguing that, because the defendant had previously

raised the same argument that the Supreme Judicial Court

eventually adopted in Guardado I, the retroactivity language in

Guardado I does not bar the defendant from benefitting from

Guardado I's ruling through a motion to reconsider. A Superior

Court judge disagreed and denied the motion. We affirm.

Discussion. "We have long held that pleadings are to be

treated 'according to their nature and substance' rather than

their technical form." Commonwealth v. Preston, 393 Mass. 318,

322-323 (1984). We review the denial of a motion for a new

trial "only to determine whether there has been a significant

error of law or other abuse of discretion" (citation omitted).

Commonwealth v. Weichell, 446 Mass. 785, 799 (2006).

The United States Supreme Court held in Bruen that the

United States Constitution protects "an individual's right to

3
carry a handgun for self-defense outside the home." Bruen, 597

U.S. at 10. Following Bruen, the Supreme Judicial Court held

that "[b]ecause possession of a firearm in public is

constitutionally protected conduct, in order to convict a

defendant of unlawful possession of a firearm, due process

requires the Commonwealth to prove beyond a reasonable doubt

that a defendant did not have a valid firearms license."

Guardado I, 491 Mass. at 668.

The Supreme Judicial Court reasoned that because the rule

announced in Guardado I was dictated by Bruen, "our holding here

should not be applied retroactively to convictions that became

final prior to the United States Supreme Court's decision in

Bruen . . . ." Guardado I, 491 Mass. at 693. "The

retroactivity of a constitutional rule of criminal procedure

turns on whether the rule is 'new' or 'old.'" Id., quoting

Commonwealth v. Perry, 489 Mass. 436, 463 (2022). "A case

'announces a new rule if the result was not dictated by

precedent existing at the time the defendant's conviction became

final.'" Guardado I, supra, quoting Commonwealth v. Bray, 407

Mass. 296, 301 (1990). "State convictions are final 'for

purposes of retroactivity analysis when the availability of

direct appeal to the state courts has been exhausted and the

time for filing a petition for a writ of certiorari has elapsed

or a timely filed petition has been finally denied.'" Beard v.

4
Banks, 542 U.S. 406, 411 (2006), quoting Caspari v. Bohlen, 510

U.S. 383, 390 (1994).

The defendant concedes that the new rule of constitutional

law articulated in Guardado I would not apply retroactively if

the defendant brought a claim on collateral review. See

Guardado I, 491 Mass. at 693. However, the defendant argues

that, because he raised the same argument that the Supreme

Judicial Court ultimately adopted, filing a "motion for

reconsideration" served to renew that claim. The argument is

unavailing.

The defendant's motion to reconsider was filed May 8, 2024,

almost fifteen years after the jury returned their verdict on

the defendant's unlawful possession of a firearm charge. The

judge, in adopting the reasons stated in the Commonwealth's

opposition brief, treated the motion as a motion for a new

trial. See Preston, 393 Mass. at 322-323 ("pleadings are to be

treated according to their nature and substance rather than

their technical form" [quotation and citation omitted]). The

defendant's motion was appropriately characterized as a motion

for a new trial because it was filed over a decade after the

defendant's convictions became final, the motion was expressly

brought "pursuant to" Mass. R. Crim. P. 30 (b) (allowing a judge

to grant a new trial), and the defendant did not raise the

violation of his Second Amendment rights until he raised it in a

5
supplemental memorandum of law submitted on direct appeal.3 See

Gouse I, 461 Mass. at 799 n.13. See Preston, supra. Because

Guardado I's new rule clearly and explicitly does not apply to

convictions that were final before Bruen and were subsequently

challenged on collateral review, the motion judge correctly

denied the defendant's motion. See Guardado I, 491 Mass. at

693.

Order denying motion to
reconsider and vacate
affirmed.

By the Court (Desmond, Shin &
Walsh, JJ.4),

Clerk

Entered: December 10, 2025.

Consequently, there was no prior ruling or decision for
3

the motion judge to reconsider. See Rule 9D of the Rules of the
Superior Court (2023) ("A Motion for Reconsideration shall be
based on . . . a particular and demonstrable error in the
original ruling or decision. A Motion for Reconsideration shall
otherwise raise no new grounds for relief not raised in the
original motion or opposition and shall not reiterate previously
advanced arguments").

4 The panelists are listed in order of seniority.

6