COMMONWEALTH vs. ROGER C. HERBERT.

COMMONWEALTH vs. ROGER C. HERBERT.

445 Mass. 1018

December 12, 2005

The defendant, Roger C. Herbert, was convicted of murder in the first degree and armed robbery, and we affirmed the convictions. Commonwealth v. Herbert, 421 Mass. 307 (1995). Herbert subsequently filed in the Superior Court a motion for a new trial, which was denied. Pursuant to the gatekeeper provision of G. L. c. 278, § 33E, Herbert applied to a single justice of this court for leave to appeal from the denial of the motion. The single justice denied the application on the separate and independent grounds that it was untimely, Mains v. Commonwealth, 433 Mass. 30 , 36 n.10 (2000), and that it presented no "new and substantial question" warranting leave to appeal. Herbert has appealed from the single justice's ruling.

The Commonwealth has moved to dismiss Herbert's appeal. It is well established that "the decision of the single justice, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is 'final and unreviewable.' " Commonwealth v. Perez, 442 Mass. 1019 , 1019 (2004), quoting Napolitano v. Attorney Gen., 432 Mass. 240 , 241 (2000). In particular, Herbert's claim that he could not previously raise his claims of ineffective assistance of counsel because he had the same counsel at trial and on direct appeal, 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 gate-keeper that the claim of ineffective assistance was not substantial." Com-

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monwealth v. Scott, 437 Mass. 1008 , 1008 (2002). Herbert cannot appeal to the full court.

Appeal dismissed.

The case was submitted on briefs.

Roger C. Herbert, pro se.

John P. Zanini, Assistant District Attorney, for the Commonwealth.