                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0490n.06

                                           No. 17-5154

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Sep 23, 2019
CLAUDE F. GARRETT,                                      )                    DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner-Appellant,                            )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE MIDDLE DISTRICT OF
TONY MAYS, Warden,                                      )   TENNESSEE
                                                        )
       Respondent-Appellee.                             )
                                                        )

       BEFORE: ROGERS, WHITE, and READLER, Circuit Judges.

       PER CURIAM. Claude F. Garrett, a Tennessee prisoner represented by counsel, appeals

the district court’s judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C.

§ 2254. As set forth below, we VACATE the district court’s judgment and REMAND for further

proceedings.

       After a retrial, a jury convicted Garrett of first-degree felony murder arising out of a

1992 house fire that killed his girlfriend. Garrett received a life sentence. On direct appeal, the

Tennessee Court of Criminal Appeals affirmed Garrett’s conviction. State v. Garrett, No. M2004-

02089-CCA-R3-CD, 2005 WL 3262933 (Tenn. Crim. App. Dec. 1, 2005), perm. app. denied

(Tenn. May 1, 2006).

       In 2013, after unsuccessfully seeking post-conviction relief in the Tennessee courts, Garrett

filed a pro se habeas petition and memorandum in support raising thirty-five grounds for relief.

The district court appointed counsel to represent Garrett and granted sixty days to “file an amended

petition, if necessary.” (R. 6, PageID 647). Counsel filed an amended habeas petition listing seven
No. 17-5154
Garrett v. Mays

claims for relief and stating: “This amended petition does not super[s]ede or replace Mr. Garrett’s

pro se Petition (D.E. 1, Petition and attached Appendices) or his Memorandum in support thereof.

(D.E. 2.) Rather, it supplements those documents, and therefore all allegations contained therein

remain before this Court.” (R. 12, PageID 655). The amended habeas petition further stated that

“Garrett relies upon all facts contained [in the state court record], as well as those contained in his

pro se filings.” (Id. PageID 656).

       The district court subsequently denied habeas relief.         In doing so, the district court

“deem[ed] the amended petition to supersede the pro se petition and the claims therein” and

“deem[ed] the claims in the pro se petition to be waived,” unless those claims were “adopted and

supported by legal memorandum.” (R. 23, PageID 5192). As for Garrett’s amended habeas

petition, the district court concluded that his claims either lacked merit or were procedurally

defaulted. The district court granted a certificate of appealability on all non-defaulted claims.

Garrett moved to alter or amend the district court’s judgment pursuant to Federal Rule of Civil

Procedure 59(e), submitting new evidence. The district court denied Garrett’s Rule 59(e) motion

but granted a certificate of appealability as to whether his newly submitted evidence should be

considered.

       Garrett filed a timely notice of appeal and moved this court to expand the certificate of

appealability granted by the district court. Granting Garrett’s motion, this court expanded the

certificate of appealability to include whether his amended habeas petition superseded his pro se

habeas petition, such that he waived the claims raised in his pro se habeas petition.

       Garrett argues—and the respondent concedes—that, in light of this court’s decision in

Braden v. United States, 817 F.3d 926 (6th Cir. 2016), we should remand the case to the district

court to address the claims raised in his pro se habeas petition. In Braden, this court acknowledged


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Garrett v. Mays

that, “[g]enerally, amended pleadings supersede original pleadings.” Id. at 930 (quoting Hayward

v. Cleveland Clinic Found., 759 F.3d 601, 617 (6th Cir. 2014)). This court recognized an exception

“to this rule where a party evinces an intent for the amended pleading to supplement rather than

supersede the original pleading.” Id. “An amended pleading supersedes a former pleading if the

amended pleading ‘is complete in itself and does not refer to or adopt a former pleading[.]’” Id.

(alteration in original) (quoting Shreve v. Franklin Cty., 743 F.3d 126, 131 (6th Cir. 2014)). As in

this case, the petitioner in Braden filed a pro se petition, the district court appointed counsel, and

counsel filed an amended petition, stating that the amended petition “does not abrogate” the claims

raised in the pro se petition but rather “supplements” those claims. Id. This court held that the

district court erred in treating the petitioner’s pro se petition as superseded by his habeas petition:

“Because the amended petition was not ‘complete in itself’ and because it referred to and adopted

the prior petition, the amended petition did not supersede the original petition. [The petitioner]

unequivocally evinced an intent to supplement his original petition.” Id. at 931 (internal citation

omitted).

       Garrett’s amended habeas petition likewise “unequivocally evinced an intent to supplement

his original petition.” Id. The district court therefore erred in deeming Garrett’s pro se habeas

petition superseded by his amended habeas petition and deeming the claims raised in his pro se

habeas petition waived.

       Following Braden, Garrett’s filings are properly considered to be a single habeas petition.

See id. (stating that “the amended petition was not ‘complete in itself’”). Although the district

court resolved the claims raised in Garrett’s amended habeas petition, it has not reached the claims

raised in his pro se habeas petition. Because some of those claims overlap, we decline to consider

the claims raised in the amended habeas petition independently.


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Garrett v. Mays

       Accordingly, we VACATE the district court’s judgment and REMAND to the district

court to consider Garrett’s habeas petition in full and make all appropriate factual findings and

legal determinations.




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