The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JOSEPH DONOVAN, )
)
Petitioner, )
) Civil Action No.
v. ) 22-11459-FDS
)
MASSACHUSETTS PAROLE BOARD, )
)
Respondent. )
_______________________________________)
MEMORANDUM AND ORDER ON
MOTION FOR A CERTIFICATE OF APPEALABILITY
SAYLOR, C.J.
Joseph Donovan filed an application with the United States Court of Appeals for the First
Circuit seeking permission to file a second or successive habeas corpus petition pursuant to 28
U.S.C. § 2244(b)(2)-(3). The Court of Appeals transferred the case to this Court to determine
whether his claims require pre-authorization, which this Court determined was correct. The
Court now considers whether petitioner should be granted a certificate of appealability (“COA”).
To appeal the final order in a proceeding instituted under 28 U.S.C. § 2254, the petitioner
must first obtain a COA from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A
COA will issue only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This standard is satisfied by “demonstrating that jurists of
reason could disagree with the district court’s resolution of [petitioner’s] constitutional claims or
that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
This Court found that there was no intervening judgment between petitioner’s 1997
habeas petition and the one he sought to file in 2020, and his claims therefore require pre-
authorization from the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3).
Petitioner contends that many courts have determined that an intervening state-court
action creates a new judgment. He further contends that Commonwealth v. Watt, 484 Mass. 742
(2020), requires a different result. Finally, he contends that his parole confers a liberty interest
that is protected by the Due Process Clause of the United States Constitution, and that newly
recognized liberty interests under the United States and Massachusetts Constitutions also require
a different result.
Although the Court disagrees with petitioner’s arguments and dismissed his petition, it
nonetheless concludes that reasonable jurists could debate whether the petition should have been
resolved in a different manner. See Miller-El, 537 U.S. at 336. As a result, the Court finds that
“the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537
U.S. at 327.
Accordingly, a certificate of appealability is GRANTED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: December 15, 2023 Chief Judge, United States District Court