by Richard Resch

In a case of first impression, the United States Court of Appeals for the First Circuit held that when a juvenile offender’s mandatory life-­without-­parole sentence is modified to life with the possibility of parole following a state court determination that the original sentence was unconstitutional, the modification constitutes a “new judgment” for purposes of 28 U.S.C. § 2244(b). Consequently, a second-­in-­time habeas petition challenging that judgment is not a “second or successive … application” under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and does not require pre-­authorization from the circuit court.

Background

In 1992, when Joseph Donovan was 17 years old, he and two acquaintances attempted to rob lockers on the campus of the Massachusetts Institute of Technology. During the attempt, Donovan punched a student, Yngve Raustein, who fell to the ground. While Raustein was on the ground, a 15-­year-­old acquaintance fatally stabbed him. Following a jury trial, Donovan was convicted of robbery and first-­degree murder under Massachusetts’s felony-­murder doctrine. The trial court imposed the then-­mandatory sentence for first-­degree murder, viz., life imprisonment without the possibility of parole. After exhausting his direct appeals, Donovan filed his first federal habeas petition in 1997, which was denied in 2002. Donovan did not appeal that denial.

In 2012, the U.S. Supreme Court held in Miller v. Alabama, 567 U.S. 460 (2012), that mandatory life-­without-­parole sentences for juveniles violate the Eighth Amendment. The following year, the Supreme Judicial Court of Massachusetts (“SJC”) held in Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270 (Mass. 2013), that Miller applied retroactively to juveniles sentenced under Massachusetts’s mandatory scheme. Applying state constitutional provisions, the SJC further held that even discretionary imposition of life without parole on juvenile murderers violated article 26 of the Massachusetts Constitution, which prohibits “cruel or unusual punishment.” The SJC determined that the language in Massachusetts General Laws chapter 265, section 2, providing for parole ineligibility, “is invalid as applied to juvenile homicide offenders.” As a result, Donovan’s sentence was modified to life with the possibility of parole, and following a 2014 parole hearing, he was released.

In 2020, Donovan sought pre-­authorization from the First Circuit to file a second habeas petition. Rather than granting or denying authorization, the First Circuit transferred the case to the U.S. District Court for the District of Massachusetts to determine whether pre-­authorization was necessary under Magwood v. Patterson, 561 U.S. 320 (2010). The District Court ruled that adding parole eligibility did not constitute a new judgment and that Donovan must obtain pre-­authorization. Donovan timely appealed.

Analysis

The Court began by explaining that the phrase “second or successive … application” in § 2244(b) is a “term of art” that does not “necessarily ‘refer to all habeas filings [under 28 U.S.C. § 2254] made second or successively in time, following an initial application.’” Rivers v. Guerrero, 605 U.S. 443 (2025). Importantly, second-­in-­time petitions challenging a new judgment do not trigger § 2244(b)’s gatekeeping requirements. In Magwood, the Supreme Court held that “where … there is a ‘new judgment intervening between the two habeas petitions,’ an application challenging the resulting new judgment is not ‘second or successive’ at all.” The Court emphasized that under Magwood, “the existence of a new judgment is dispositive” and that “the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged.”

The Court observed that a judgment comprises both a conviction and a sentence. Burton v. Stewart, 549 U.S. 147 (2007). In Burton, the Supreme Court explained that a judgment becomes final when “both [a] conviction and [a] sentence ‘[become] final.’” Consequently, the Court stated that for purposes of § 2244(b), a new sentence can qualify as a new judgment.

Life Without Parole Versus Life With Parole as Distinct Sentences

The Court turned to Supreme Court precedent addressing life-­without-­parole sentences. The Court noted that in Miller, the Supreme Court opined in its opening paragraph that “life with the possibility of parole” is a “lesser sentence” than “life imprisonment without the possibility of parole.” The Miller Court’s analysis reinforced this understanding, highlighting that discretion at sentencing would allow “a judge or jury [to] choose, rather than a life-­without-­parole sentence” an alternative such as “a lifetime prison term with the possibility of parole.”

Similarly, in Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court treated life without parole and life with the possibility of parole as distinct, alternative sentences. The Graham Court held that life-­without-­parole sentences for juveniles convicted of nonhomicide offenses violate the Eighth Amendment, whereas sentences with parole eligibility do not. The Court explained, “[i]mplicit in the conclusion that a life-­without-­parole sentence for juveniles who have been convicted of nonhomicide offenses violates the Constitution, but one with the possibility of parole does not, is the [Supreme] Court’s view that there is a material difference between the sentences.”

Acknowledging that Miller’s characterization of life with parole as a “lesser sentence” constitutes dictum, the Court nonetheless explained that “carefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative.” The Court identified no basis to conclude the Supreme Court’s characterization was not carefully considered, particularly given the reiteration of that view in Miller’s analysis.

Application to Present Case

Applying these principles, the Court held that when the SJC issued Diatchenko, which changed Donovan’s sentence from 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, constitutional sentence, “he is properly considered to have received a new judgment for purposes of § 2244(b),” the Court concluded.

The Court rejected the Massachusetts Parole Board’s (“MPB”) arguments. The MPB contended that Donovan was not resentenced because Diatchenko did nothing to change his “life” sentence. The Court rejected this argument, explaining that it is inconsistent with Miller’s plain statement and Graham’s holding that parole eligibility converts a sentence from unconstitutional to constitutional. The MPB’s argument also improperly elevated “form over substance,” because Donovan was no longer incarcerated, “an outcome that would have been impossible under his prior life-­without-­parole sentence.”

The MPB further argued that the SJC’s severability approach, striking only the parole-­ineligibility clause, demonstrated no new sentence was imposed. The Court disagreed, explaining that severability “only comes into play where one part of a law has been held invalid.” The SJC’s decision to sever the unconstitutional portion “confirms the invalidity of Donovan’s original life-­without-­parole sentence.” The Court also noted that the SJC’s later decision in Commonwealth v. Mattis, 224 N.E.3d 410 (Mass. 2024), which extended Diatchenko’s holding to “emerging adults,” expressly stated that affected individuals would “receiv[e] the benefit of resentencing” – compelling evidence that the SJC would view Diatchenko beneficiaries to have received new sentences.

Challenge to Conviction
Rather Than Sentence

The Court addressed whether Donovan’s challenge targeted his unchanged conviction rather than his modified sentence. Magwood reserved whether a petitioner receiving a new sentence may challenge an “original, undisturbed conviction.” Six Circuits have held that Magwood applies to such challenges. The Second, Third, Fourth, Sixth, Ninth, and Eleventh Circuits all concluded that when a habeas petition is the first to challenge a new judgment, it is not second or successive regardless of whether it challenges the sentence or the underlying conviction. Johnson v. United States, 623 F.3d 41 (2d Cir. 2010); Lesko v. Secretary Pennsylvania Department of Corrections, 34 F.4th 211 (3d Cir. 2022); In re Gray, 850 F.3d 139 (4th Cir. 2017); King v. Morgan, 807 F.3d 154 (6th Cir. 2015); Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012); Insignares v. Secretary, Florida Department of Corrections, 755 F.3d 1273 (11th Cir. 2014).

The Seventh and Tenth Circuits came to contrary results by deferring to pre-­Magwood precedent. Suggs v. United States, 705 F.3d 279 (7th Cir. 2013); Burks v. Raemisch, 680 F. App’x 686 (10th Cir. 2017) (unpublished decision). The Fifth Circuit initially expressed doubt about Magwood’s applicability in In re Lampton, 667 F.3d 585 (5th Cir. 2012), but has since changed course in an unpublished decision. In re Greenwood, No. 19-­60884, 2022 U.S. App. LEXIS 4495 (5th Cir. 2022) (unpublished decision).

Because the MPB offered no argument that Donovan’s challenge to his conviction rather than his new sentence should be treated differently, the Court deemed any such argument waived.

Conclusion

Notably, the Court emphasized that its ruling answered only the question regarding pre-­authorization and did not address whether any other procedural or substantive barriers might foreclose Donovan’s petition.

Accordingly, the Court reversed the District Court’s judgment and remanded for further proceedings. See: Donovan v. Massachusetts Parole Board, 2025 U.S. App. LEXIS 33579 (1st Cir. 2025).  

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