IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

KELLY B. DONAHUE, 

 Petitioner, 

 v. 

KATHY BRITTAIN, 

 Respondent. 

 No. 4:24-CV-01982 

 (Chief Judge Brann) 

 

 

MEMORANDUM OPINION AND ORDER 

JANUARY 10, 2025 

On July 2, 2024, petitioner Kelly B. Donahue filed a petition for a writ of 

habeas corpus under 28 U.S.C. § 2254 in this Court, in which he purported to 

challenge his 2003 convictions and sentences imposed by the Court of Common 

Pleas of Clearfield County, Pennsylvania.1

 That petition was transferred to the 

United States District Court for the Western District of Pennsylvania pursuant to 

28 U.S.C. § 1404(a) and 28 U.S.C. § 2241(d), as Clearfield County and the District 

Attorney for Clearfield County (who would be responding to Donahue’s petition) 

are both located in the Western District of Pennsylvania.2

 

1

 See Donahue v. Brittain, No. 4:24-cv-01119, Doc. 1 (M.D. Pa. July 2, 2024). Donahue’s 

petition was received by the Court on July 8, 2024, but was dated by Donahue as being placed 

in the prison mailing system on July 2, 2024. See id. at 15; Pabon v. Mahanoy, 654 F.3d 385, 

391 n.8 (3d Cir. 2011) (explaining operation of “prisoner mailbox rule”). 

2

 See id., Doc. 10; 28 U.S.C. § 118(c). 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 1 of 6
2 

Several months later, Donahue filed a second Section 2254 petition in this 

Court.3

 In his second petition, Donahue attempts to challenge the Pennsylvania 

Parole Board’s June 24, 2024 decision to deny him parole.4

 Because Donahue has 

not obtained permission from the appropriate court of appeals to file a second or 

successive Section 2254 petition, this Court must dismiss the instant petition for 

lack of jurisdiction.5

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

establishes strict limitations on filing second or successive habeas corpus petitions 

in federal court.6

 Of particular relevance for Donahue’s instant petition, “[a] claim 

presented in a second or successive habeas corpus application under section 2254 

that was not presented in a prior application shall be dismissed” unless the 

petitioner can satisfy one of two narrow exceptions.7

 Those exceptions are either 

(1) reliance on a previously unavailable “new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court”; or (2) new facts 

that could not previously have been discovered by due diligence which would 

establish “by clear and convincing evidence that, but for constitutional error,” no 

3

 See generally Doc. 1. 

4

 See Doc. 1 at 1, 5; Doc. 4 at 1. 

5

 See 28 U.S.C. § 2254 Rule 4 (“If it plainly appears from the petition and any attached exhibits 

that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition 

and direct the clerk to notify the petitioner.”). 

6

 See generally 28 U.S.C. § 2244. 

7

 Id. § 2244(b)(2) (emphasis added); Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 2 of 6
3 

reasonable juror would have found the petitioner guilty.8 However, even if a 

petitioner can potentially meet one of these exacting preconditions, they must first 

“move in the appropriate court of appeals for an order authorizing the district court 

to consider the [second or successive] application.”9

Donahue’s Section 2254 petition challenging his parole denial does not align 

with the usual circumstances where such a petition would not be considered a 

“second or successive” petition within the meaning of 28 U.S.C. § 2244(b). 

Normally, a state prisoner will collaterally attack their underlying conviction and 

sentence through a Section 2254 petition, and that petition will be filed (and often 

adjudicated) before the prisoner has had an opportunity to seek parole. Later, 

parole will be sought and denied, and the prisoner will then file a new Section 

2254 petition challenging some aspect of that denial of parole. This literal secondin-time petition, however, is not considered a “second or successive” petition under 

28 U.S.C. § 2244(b) because the challenge to the parole board’s decision was not 

previously available and thus could not have been asserted in the earlier Section 

2254 petition.10

Not so with Donahue’s instant petition. Donahue plainly states that the 

parole decision he is challenging occurred on June 24, 2024.11 Yet Donahue did 

8

 28 U.S.C. § 2244(b)(2)(A)-(B). 

9

 Id. § 2244(b)(3)(A). 

10 See Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005). 

11 See Doc. 1 at 1. 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 3 of 6
4 

not lodge his first Section 2254 petition until July 2, 2024.12 Thus, Donahue 

“could have raised this [parole] challenge . . . in his first habeas petition,”13 but he 

did not. Donahue, moreover, “cannot claim that he was somehow excused from 

raising the parole claim simply because his first petition challenged his trial and 

conviction rather than the administration of his sentence.”14

Even if there is some question as to whether Donahue received notice of the 

June 24, 2024 parole denial before he filed his first Section 2254 petition, on July 

30, 2024, this Court provided Donahue with the opportunity to withdraw his initial 

Section 2254 petition and file an all-inclusive petition raising all claims for relief.15 

That notice explicitly warned Donahue of the strict limitations on filing second or 

successive Section 2254 petitions and urged him to “carefully consider whether the 

current habeas petition raises all grounds for relief[.]”16 On August 6, 2024, 

Donahue expressly rejected this opportunity and chose to have his initial Section 

2254 petition ruled on as filed.17

12 See Donahue v. Brittain, No. 4:24-cv-01119, Doc. 1 (M.D. Pa. July 2, 2024). 

13 Benchoff, 404 F.3d at 817. 

14 Id. at 819. To the extent Donahue may argue that he did not include the parole claim in his 

first Section 2254 petition because he was attempting to exhaust state remedies on that claim, 

(see Doc. 1 at 5-6), that argument fails. “[T]he sole fact that the new claims were unexhausted 

when the earlier federal writ was prosecuted will not excuse their omission.” Id. at 820 

(quoting and agreeing with Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003)). 

15 See Donahue v. Brittain, No. 4:24-cv-01119, Doc. 5 (M.D. Pa. July 30, 2024) (citing, inter 

alia, 28 U.S.C. § 2244(b)(3)(A)). 

16 Id. at 2. 

17 See id., Doc. 6. 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 4 of 6
5 

Thus, under the AEDPA, this Court does not have jurisdiction to entertain 

Donahue’s instant Section 2254 petition, as that petition is an unauthorized second 

or successive application within the meaning of Section 2244(b).18 If Donahue 

desires to press a new post-conviction claim in this Court in a second or successive 

Section 2254 petition, he must first obtain authorization from the United States 

Court of Appeals for the Third Circuit before filing such a petition.19 Therefore, 

because it is clear that subject matter jurisdiction is lacking, the instant Section 

2254 petition must be dismissed.20

AND NOW, upon consideration of the foregoing, IT IS HEREBY 

ORDERED that: 

1. Donahue’s petition (Doc. 1) for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254 is DISMISSED without prejudice for lack of subject 

matter jurisdiction. The Court declines to transfer Donahue’s petition 

to the court of appeals, as the petition does not appear to meet the 

strict gatekeeping requirements of 28 U.S.C. § 2244(b)(2). 

2. A certificate of appealability shall not issue, as Donahue has not made 

a substantial showing of the denial of a constitutional right, see 28 

U.S.C. 

§ 2253(c)(2), or that “jurists of reason would find it debatable” 

whether this Court’s procedural rulings are correct, Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). 

 

18 See Burton v. Stewart, 549 U.S. 147, 157 (2007). 

19 28 U.S.C. § 2244(b)(3)(A). 

20 Burton, 549 U.S. at 157; Benchoff, 404 F.3d at 820-21. 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 5 of 6
6 

3. The Clerk of Court is directed to CLOSE this case. 

BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

Case 4:24-cv-01982-MWB-MP Document 6 Filed 01/10/25 Page 6 of 6