MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, District Judge.
Before the Court is respondent Sean Medeiros's opposed motion to dismiss pro se petitioner Roger Francis's 28 U.S.C. §2254 ("Section 2254") petition for habeas corpus (Docket Entry No. 15), Francis's opposition (Docket Entry No. 18), Medeiros's reply (Docket Entry No. 19), and Francis's further reply (Docket Entry No. 20). After consideration of the submissions, Medeiros's motion is DENIED without prejudice and it is further ordered that the unauthorized second or successive Section 2254 petition is TRANSFERRED to the First Circuit Court of Appeals as an implicit request for authorization to file a second or successive Section 2254 Petition.
I. Background
On March 12, 1967, a Massachusetts State Trooper found fifteen-year-old Marialice Pike alive, but unconscious, in the median strip of Route 3 in Hingham having suffered gunshot wounds from Francis. Com. v. Francis, 355 Mass. 108, 110 (1969). She later died from her injuries.1 Id. Francis was eventually apprehended in Canada and charged with the murder. Id. The central issue at trial was not whether Francis killed the victim, but rather whether he was criminally responsible at the time because of mental illness. Id. at 110. Francis was convicted of murder in the first degree, and although the jury recommended the death penalty, he was sentenced to life imprisonment. Id. at 108. His conviction was affirmed in 1969. Id.
Twenty years later, in 1989, Francis's conviction was overturned because of a jury instruction error. Com. v. Francis, 411 Mass. 579 (1992). Francis was released on bail in February 1990. Respondent's Reply Brief, Exhibit 1, Francis's Appellant's Brief, Docket entry No. 19-1, p.10.
"In May 1994, . . . [Francis] . . . reached a plea-deal with the Commonwealth: . . . [he] . . . would plead guilty to murder in the second degree in exchange for the opportunity to immediately seek parole, which the Commonwealth would not oppose." Com. v. Francis, 477 Mass. 582, 583 (2017). If not granted parole, Francis "would be permitted to withdraw his guilty plea and proceed to trial on the murder in the first degree charge." Id. Francis pleaded guilty to murder in the second degree on May 25, 1994. Id. His sentence was stayed, over the Commonwealth's objection, pending the parole hearing, that was scheduled for August 1994. Id. The Parole Board later informed the Court and the parties that Francis had to be in custody for the Parole Board to have jurisdiction. But Francis refused to go back into custody and the hearing was cancelled. Id. In September 1994, the plea judge issued a revised order to accommodate Francis that would terminate the stay of Francis's sentence once the board commenced the hearing. Id.
Almost five years later, the parole hearing was rescheduled for March 1999.2 Francis, 477 Mass. at 584. The hearing was cancelled, in part, because Francis refused to go back into custody. Id. The hearing was rescheduled for March 2000. Francis, through counsel, moved to continue the stay of his sentence or in the alternative to withdraw his plea because he did not want to go back into custody. Id.
At the hearing, a different judge proposed a solution: "that the stay be continued until the moment the hearing commenced . . . and that the stay be automatically reimposed following the hearing if the defendant were denied parole so that he could withdraw his plea." Francis, 477 Mass. at 584. The Commonwealth objected, and Francis was permitted to withdraw his plea. Id.
Three years later, in 2003, Francis was tried again and convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity and cruelty. Com. v. Francis, 450 Mass. 132,133 (2007). He was, again, sentenced to life in prison without the possibility of parole. Id. That conviction was affirmed by the Supreme Judicial Court in 2007. Id.
In 2008, Francis filed his first, counseled, Section 2254 petition raising a single ground: that the statute preventing a jury waived trial in a capital case was unconstitutional. Francis v. O'Brien, Civ. No. 08-CV-10839-DPW, Docket Entry No. 1. That petition was denied on the merits in 2010 after Francis failed to oppose a motion for judgment on the pleadings. Francis v. O'Brien, Civ. No. 08-CV-10839-DPW, Docket Entry No. 19 (incorporating March 1, 2010 electronic order granting motion for judgment on the pleadings).
"In 2013, Francis filed a motion for a new trial alleging ineffective assistance of counsel and that his 1967 sentence was cruel or unusual." Com. v. Francis, 477 Mass. 582, 584 (2017). "Although the judge—who was the judge at the defendant's 2003 trial—found the defendant's arguments unavailing, `[i]n light of the extenuating facts of this case,' she granted the motion based on `principles of fundamental fairness and due process,' even though she found that the Commonwealth had not reneged on the plea offer.'" Id. "The judge ordered specific performance of the 1994 plea agreement, and allowed the defendant to plead guilty to murder in the second degree." Id. "The judge reasoned that this was the correct result because `another party to the negotiation, the court, adopted an interpretation of the [s]tatute—that the [p]arole [b]oard could entertain the defendant's request for and conduct a hearing at the Board's office without his surrendering into [Department of Correction] custody—on which the defendant relied to his detriment.'" Id. at 584-85. The Commonwealth appealed the order, pursuant to the gatekeeper provisions of Mass. Gen. L. ch. 278, §33E. Id. at 585. The Superior Court set a dispositional hearing that was stayed by the Supreme Judicial Court See Docket Entry No. 16-1, p.11(Dispositional Hearing for July 24, 2015 stayed by Supreme Judicial Court Order). The Supreme Judicial Court ultimately reversed the trial court's order, holding:
A judge may not use the vantage point of hindsight to second guess the decisions of a defendant in rejecting a plea agreement . . . That is what happened here. There was no enforceable promise made by the Commonwealth that the defendant did not have to ever go into custody. Thus, there were no grounds for the judge to allow the defendant to plead guilty to murder in the second degree. We conclude that the judge abused her discretion in granting the defendant's motion for new trial.
Com. v. Francis, 477 Mass. 582, 587 (2017). In April 2018, Francis filed the instant secondin-time Section 2254 petition.
II. Discussion
A state prisoner, in the usual course, has a single opportunity to attack the validity of their conviction and sentence under 28 U.S.C. §2254. The district court is jurisdictionally limited in considering a second or successive petition. "Before a second or successive [Section 2254] application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. §2244(b)(3)(A); see Rule 9, Rules Governing Section 2254 Cases in the United States District Courts. Absent authorization from the appropriate court of appeals, a district court is without jurisdiction over a second or successive Section 2254 petition. Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam).
Francis argues that his second-in-time Section 2254 petition is not a second-or-successive petition because, even though he was not resentenced, the Superior Court's order would have resulted in a new judgment and sentence but for an appeal and the reversal of the order. Francis posits that the order amounted to a "change of status" effectively resetting the second or successive count. He analogizes that the effect of the Supreme Judicial Court's reversal was akin to "[t]urning a light switch on and then back off again" and that no matter how quickly switched off, the reversal of the switch "cannot mean the light was never on." Opposition, Docket entry No. 18, p. 6.
But using Francis's analogy the light was never switched on in the first place. Indeed, Francis's "change of status" argument, while creative, is unpersuasive under his cited cases which presuppose a new judgment: a circumstance not present here. See Magwood v. Patterson, 561 U.S. 320, 341-42 (2010); King v. Morgan, 807 F.3d 154, 158 (6th Cir. 2015). Medeiros persuasively argues there was no new judgment or sentence:
In the petitioner's case, there was no similar "new judgment" intervening between habeas applications. Unlike in Magwood, the petitioner's "new sentence" that was ordered by the trial court as part of a motion for new trial was not affirmed on appeal by the Supreme Judicial Court. Commonwealth v. Francis, 477 Mass. 582, 587, 79 N.E.3d 1045 (2017) (finding that the trial court judge abused her discretion and reversing the granting of the motion for new trial). In addition, that new sentence was stayed during the pendency of the Commonwealth's appeal and, therefore, was never formally executed as a final judgment. (ADD.7-9). Instead, by reversing the allowance of the motion for new trial, the SJC's decision reinstated the prior judgment of guilty of first-degree murder with a sentence of life in prison. Unlike Magwood, the SJC's decision was not a "new judgment and sentence [that] were the result of a complete and new assessment of all of the evidence." 561 U.S. at 326. The petitioner is attempting to challenge the same judgment and sentence as he did in his prior petition filed in 2008.
Respondent's Reply, Docket Entry No. 19, p. 2. Francis' petition is therefore both a second-intime petition and a second or successive under 28 U.S.C. §2254 where it challenges the "reinstated"3 2003 conviction and a "new" sentence that was never imposed.
Accordingly, where Francis presents an unauthorized second or successive 2254 petition, this Court is without jurisdiction to entertain the merits of the petition. "[A] district court, faced with an unapproved second or successive habeas petition, must either dismiss it, . . . or transfer it to the appropriate court of appeals." Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); see First Circuit Rule 22.1(e) ("If a second or successive § 2254 . . . petition is filed in a district court
