Habeas corpus – Parole – Second-in-time petition

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Where a U.S. District Court judge ruled that a habeas corpus petitioner was required to satisfy the gatekeeping requirements applicable to “second or successive” applications for habeas relief, the judge erred, as the modification of the petitioner’s sentence (from life without parole to life with the possibility of parole) constitutes a new, intervening judgment, so the petitioner need not receive pre-authorization prior to filing his second-in-time petition.

“Petitioner Joseph Donovan seeks to file a second-in-time application for habeas relief. The question presented on appeal is whether he must contend with 28 U.S.C. §2244(b)’s stringent ‘gatekeeping’ requirements in doing so. The answer depends on whether his second-in-time petition is properly considered a ‘second or successive … application’ for habeas relief under §2244(b), according to the Supreme Court’s interpretation of that ‘term of art.’ Donovan must satisfy the gatekeeping requirements only if it is.

“… Relevant here, it does not refer to second-in-time petitions that challenge a new judgment. Magwood v. Patterson, 561 U.S. 320, 341-42 (2010).

“Here, Donovan received a mandatory sentence of life imprisonment without the possibility of parole for an offense committed when he was a juvenile. Years later, however, the Supreme Judicial Court of Massachusetts (‘SJC’) held that such life-without-parole sentences were unconstitutional for juveniles. Diatchenko v. Dist. Att’y for the Suffolk Dist., 1 N.E.3d 270, 281–82 (Mass. 2013). Donovan’s sentence was consequently modified from one of life without parole to one of life with the possibility of parole. The more discrete question we must answer, then, is whether that modification constitutes a new judgment. … If so, Donovan’s proposed second-in-time petition challenges a new, intervening judgment and does not trigger §2244(b)’s gatekeeping requirements. Because we hold that such a modification constitutes a new judgment, we conclude that §2244(b) is inapplicable, and Donovan need not receive pre-authorization from this court prior to filing his second-in-time petition. We therefore reverse the district court’s judgment. …

“… Donovan argues that he received a new sentence and therefore a new judgment; [respondent Massachusetts Parole Board (MPB)] contends he did not. Accordingly, we answer only that question and do not address whether any other procedural or substantive barriers foreclose Donovan’s petition. …

“What, then, constitutes a new judgment for purposes of §2244(b)? Relevant here, when considering the statute of limitations applicable to §2244, the Court explained that a judgment becomes final when ‘both [a] conviction and [a] sentence “bec[o]me final.”’ … This makes clear that a judgment consists of both a conviction and a sentence. … Therefore, for the purposes of applying §2244(b), a new sentence can qualify as a new judgment. …

“This leads us to the question we must decide: whether Donovan received a new sentence when his sentence was changed from one of life without parole to life with the possibility of parole and whether that new sentence qualifies as a new judgment for purposes of §2244(b). On this question, we are not aware of, and the parties did not identify, any binding precedent. The Supreme Court has, however, in prior decisions addressed life-without-parole sentences vis-a-vis life terms with the possibility of parole. …

“Applying those precedents here, when the SJC issued its decision in Diatchenko, which changed Donovan’s sentence from one of ‘life without parole’ to life with the possibility of parole, he received the benefit of a materially different, new sentence. Because Donovan received a new sentence of life with the possibility of parole, which is a constitutional sentence, he is properly considered to have received a new judgment for purposes of §2244(b). … The result of this conclusion is that because Donovan’s proposed second-in-time petition seeks to challenge that new judgment, it is not a ‘second or successive … application’ under §2244(b) and that provision’s ‘gatekeeping’ requirements are not implicated. Donovan therefore need not secure this court’s pre-authorization prior to filing his second-in-time petition for habeas relief. …

“The only relevant issue left unresolved by the foregoing stems from the fact that Donovan’s actual challenge is to his unchanged conviction rather than to his changed sentence. Magwood itself reserved the question whether to treat such a challenge as not second or successive. …

“The six circuit courts to have squarely addressed this issue have all ruled that Magwood may apply to such a challenge. …

“Two other circuits reached a contrary result but only by deferring to pre-Magwood circuit precedent. …

“Consistent with this weight of authority, Donovan argues that it matters not that he challenges his conviction rather than his new sentence. MPB, in turn, offers no argument at all to the contrary. Nor, for that matter, did the district court. Accordingly, any such argument is waived. … That Donovan’s petition challenges only his original, undisturbed conviction thus does not change our conclusion that the petition is not second or successive under AEDPA. …

“In summary, this appeal turns on a narrow, technical question of habeas procedure under AEDPA. Is Donovan now subject to a new judgment? Certainly, he is subject to a new sentence. As the Supreme Court plainly states, ‘life with the possibility of parole’ is a ‘lesser sentence’ than ‘life imprisonment without the possibility of parole.’ …

“That leaves the question whether Donovan’s change in sentence constitutes a change in (i.e., a new) judgment. The law is quite clear that the sentence is part of the judgment. … Indeed, were the sentence not part of the judgment, appeals from convictions might be heard pre-sentencing. In this case, Donovan’s original sentence of life without parole was replaced, as unconstitutional, by the lesser sentence of life with the opportunity of parole, so it stands to reason that the original judgment of which that sentence was a component was also replaced by operation of law. Therefore, when Donovan received a new, lesser sentence to replace his prior, unconstitutional sentence, he also received a new judgment.

“Finally, the fact the SJC, the Massachusetts high court, effected the new, lesser sentence by ruling across the board in 2013 that the ‘no parole’ law no longer applies to people who were previously convicted as juveniles does not call for a different conclusion. Under Magwood, the issue is whether the original judgment changed, not how it changed. There being no other relevant arguments advanced by MPB, we rule in Donovan’s favor on the limited, procedural question before us. …

“The judgment of the district court is therefore reversed. The case is remanded for further proceedings consistent with this opinion.”

Dissenting judge’s comments

Lynch, J. “With respect, I dissent because Donovan’s second/successive habeas challenge is barred and he may not challenge yet again his judgment and life sentence resulting from his 1993 first-degree murder conviction. The Massachusetts Supreme Judicial Court (SJC) left that judgment of conviction and life sentence in place after the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012). See Diatchenko v. Dist. Att’y for Suffolk Dist., 1 N.E.3d 270, 282, 286 (Mass. 2013). And Miller‘s progeny, Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), held that it was the choice of each state as to whether in these circumstances it would enter a new sentence and whether it would enter a new judgment. Massachusetts chose to do neither. The majority wrongly concludes, based on its misapprehension of federal law, that Massachusetts is forbidden to make the choices it has made. In doing so, the majority flatly violates Montgomery and numerous restrictions on federal habeas contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and in Supreme Court caselaw.

“Given the majority’s multiple legal errors, this case warrants further review. The majority undercuts the sentencing choices left to the states by Montgomery as to how best to handle juveniles who commit first-degree murder and, in doing so, disrupts fundamental principles of federalism. The majority incorrectly reasons that because Miller in a descriptive language choice described a life sentence with the possibility of parole as a ‘lesser sentence’ than life without the possibility of parole, 567 U.S. at 465, Donovan necessarily received a ‘new’ sentence as a matter of federal law. The majority then concludes that this supposed new sentence necessarily created a ‘new’ judgment under AEDPA. Accordingly, the majority permits juvenile offenders made parole eligible by Diatchenko to bypass AEDPA’s gatekeeping restrictions on successive federal habeas petitions. That conclusion violates AEDPA’s text and limitations, contradicts the SJC’s holding as a matter of state statutory interpretation that Donovan has no new criminal judgment and no new sentence, and squarely conflicts with Montgomery. The district court correctly denied further habeas review and should be affirmed.”

Donovan v. Massachusetts Parole Board (Lawyers Weekly No. 01-265-25) (47 pages) (Montecalvo, J.) (Lynch, J., dissenting) Appealed from a decision by Saylor, J., in the U.S. District Court for the District of Massachusetts. Paul K. Donovan, with whom Donovan Legal PLLC was on brief, for the petitioner-appellant; Gabriel T. Thornton, with whom Andrea Joy Campbell was on brief, for the respondent-appellee (Docket No. 23-1810) (Dec. 23, 2025).

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