Batiste v. Scott ( 1993 )

USCA1 Opinion

          December 28, 1993     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1677 

                                  JIMMY D. BATISTE,

                                     Petitioner,

                                          v.

                SANDRA SCOTT, DIRECTOR OF HILLSIDE PRE-RELEASE CENTER,

                                     Respondent.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Jimmy D. Batiste on brief pro se.
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            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,
            __________________                            ___________________
        Assistant Attorney General, on brief for respondent.


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                 Per  Curiam.     Petitioner  was  convicted   in  Boston
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            Municipal  Court in  1989 on  a single  count of  assault and

            battery with a  dangerous weapon.  He received  a sentence of

            two and one-half years, with all but one year suspended.  His

            ensuing  attempts to challenge this conviction in state court

            came  to naught:  the trial  court  denied a  motion for  new

            trial, the  Appeals Court  affirmed his  conviction, and  the

            Supreme  Judicial Court  denied his  application for  further

            appellate review.   Petitioner then turned to  federal court,

            filing a pro se, in forma pauperis petition for habeas corpus
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            pursuant to 28 U.S.C.   2254 in August 1991.  It was apparent

            from the face of the petition that, of the eight grounds  for

            relief there raised,  no more than six had  been presented to

            the  state appellate courts.  For  this reason, a magistrate-

            judge  (upon reviewing  the  petition  prior  to  service  of

            process)  recommended  that  it  be summarily  dismissed  for

            failure to exhaust state remedies.  See, e.g., Rose v. Lundy,
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            455  U.S.   509  (1982)  (requiring   dismissal  of   "mixed"

            petitions).

                 Petitioner responded to this recommendation in two ways.

            On July  29, 1992,  he  filed objections  to the  magistrate-

            judge's  report, complaining  inter alia  of various  alleged
                                          __________

            factual inaccuracies therein.   Part of the  relief requested

            was  that he be granted leave to  "refile" his petition.  Two

            days  later, he did just that--submitting an amended petition



















            containing  only the six "exhausted" claims for relief.  This

            amended petition  was filed under  the same docket  number as

            its  predecessor.  The district court subsequently entered an

            order summarily  dismissing the petition  "[f]or the  reasons

            stated   by  the  Magistrate   Judge  in  her   Findings  and

            Recommendations."   It  thereafter granted  a  certificate of

            probable cause to appeal.

                 We  are constrained  to vacate  and  remand for  further

            proceedings, for the simple reason that  the court appears to

            have overlooked  petitioner's  amended petition.    A  habeas

            petitioner,  faced with  a  determination that  his  petition

            contains  both  exhausted and  unexhausted  claims, has  "the

            choice of returning  to state court to exhaust  his claims or

            of  amending or resubmitting  the habeas petition  to present

            only exhausted claims to the district court."  Rose, 455 U.S.
                                                           ____

            at 510; accord, e.g., Watkins v.  Ponte, 987 F.2d 27, 30 (1st
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            Cir.  1993); Tart  v. Massachusetts,  949 F.2d 490,  494 (1st
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            Cir.  1991).   The  petitioner  here has  plainly  chosen the

            latter option--even  to the  point of  acknowledging (in  his

            appellate papers) that he will likely thereby waive his right

            to federal  review of his  two remaining claims.   See, e.g.,
                                                               ___  ____

            McCleskey v.  Zant, 499  U.S. 467 (1991);  Rose, 455  U.S. at
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            520-21 (plurality).

                 The government  contends  that the  order  of  dismissal

            concerned  only the first  petition, that the  district court



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            has taken  no  action with  regard  to the  amended  petition

            (i.e.,  that such petition  remains pending below),  and that

            any  issues involving  the  amended  petition  are  thus  not

            properly before us.  Indeed, it goes so far as to  suggest we

            should not "tolerate" petitioner's "tactic" of simultaneously

            propounding an amended  petition while seeking review  of the

            dismissal of  his initial petition.  See Brief  at 9 n.5.  We
                                                 ___

            find  this  argument  utterly  unpersuasive.     Petitioner's

            unilateral  decision  to  amend his  petition  to  delete the

            unexhausted claims was consistent not only with the procedure

            prescribed in Rose,  but with Fed. R.  Civ. P. 15(a) as  well
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            (since no responsive  pleading had been  filed).  See,  e.g.,
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            Lacy v  Gabriel, 732  F.2d 7, 11  & n.1  (1st Cir.)  (Rule 15
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            applies to    2254 proceedings),  cert. denied, 469  U.S. 861
                                              ____________

            (1984).  The  fact that the amended petition  appears to have

            been  submitted  beyond  the deadline  for  objecting  to the

            magistrate-judge's report  is thus of no moment.  Having been

            properly filed, the amended  petition "completely replac[ed]"

            the  original petition, Cicchetti v. Lucey, 514 F.2d 362, 365
                                    _________    _____

            n.5  (1st Cir.  1975), with  the result  that the  latter "no

            longer perform[ed] any function in the case," 6 C. Wright, A.

            Miller & M.  Kane, Federal Practice and Procedure    1476, at
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            556-57 (1990).   Accord, e.g., Davis v. TXO  Prod. Corp., 929
                             ______  ____  _____    ________________

            F.2d 1515, 1517  (10th Cir. 1991);  Boelens v. Redman  Homes,
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            Inc.,  759  F.2d  504,  508  (5th  Cir.  1985)  ("an  amended
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            complaint ordinarily  supersedes the original and  renders it

            of no legal effect, unless the amended complaint specifically

            refers to or adopts the earlier pleading").

                 Against this backdrop, the contention that the  district

            court  confined its dismissal to the original petition, while

            leaving the amended  petition pending, is unconvincing.   The

            language of  the  order contained  no such  suggestion.   The

            docket sheet reflects that, on the very day the order issued,

            the case was  declared "closed."   And, if it were  true that

            the amended petition remained pending, the order of dismissal

            would quite  obviously not have  been appealable--an obstacle

            that neither the  district court (in granting a  CPC) nor the

            government on appeal  has mentioned.  We  must conclude that,

            in approving the magistrate-judge's recommendation of summary

            dismissal, the  district court  inadvertently overlooked  the

            amended petition.  We therefore remand the matter for further

            proceedings.

                 Vacated and remanded for further proceedings.
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