Commonwealth v. Herbert

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…