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December 28, 1993 [NOT FOR PUBLICATION]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,
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Torruella and Selya, Circuit Judges.
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Jimmy D. Batiste on brief pro se.
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Scott Harshbarger, Attorney General, and William J. Meade,
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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
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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.
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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.,
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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
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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
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(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
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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
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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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