          United States Court of Appeals
                     For the First Circuit

No. 12-1131

                         JOSEPH DELONG,

                     Petitioner, Appellant,

                               v.

                        THOMAS DICKHAUT,

                      Respondent, Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]



                             Before

                     Thompson, Circuit Judge,
                   Souter,* Associate Justice,
                    and Stahl, Circuit Judge.


     Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan were on brief, for appellant.
     Jennifer L. Sullivan, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.




                           May 6, 2013




    *
        The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            PER CURIAM. Before this Court on appeal is the dismissal

of Petitioner Joseph DeLong's 28 U.S.C. § 2254 federal habeas

corpus petition.      After careful review, we remand to the district

court.   We begin by outlining the procedural posture of DeLong's

case.

            DeLong was convicted by a jury in Massachusetts state

court on two indictments charging him with unarmed robbery, and

sentenced    to    concurrent    terms   of   fifteen    to    twenty   years'

imprisonment.      DeLong filed a motion for a new trial, alleging

ineffectiveness of trial counsel and requesting an evidentiary

hearing; he later filed an amended motion claiming newly discovered

evidence--a       surveillance    tape     and   still        photographs--was

exculpatory and warranted a new trial, or at minimum an evidentiary

hearing on his motion.     The court denied DeLong's motion for a new

trial, finding the evidence was reasonably discoverable at the time

of trial.     DeLong appealed the judgments and the denial of his

motion for new trial.

            The Massachusetts Appeals Court affirmed the convictions

but found DeLong had made an adequate showing to warrant an

evidentiary hearing on the newly discovered photographic and video

evidence. The Appeals Court remanded the matter to the trial court

for an evidentiary hearing. Following the evidentiary hearing, the

trial court again denied the motion for a new trial; DeLong

appealed and the Appeals Court subsequently affirmed.              DeLong then


                                     -2-
sought further appellate review of his motion for a new trial with

the Massachusetts Supreme Judicial Court (SJC), arguing ineffective

assistance of counsel and violations of his right to due process.

The SJC denied his application.     DeLong applied again to the SJC

for further appellate review of the Appeals Court's affirmance of

his convictions, arguing ineffective assistance of counsel, denial

of his right to fair trial, and reversible error.         The SJC also

denied this request.

          DeLong then filed, pro se, a 28 U.S.C. § 2254 federal

habeas corpus petition in the U.S. District Court of Massachusetts.

His petition raised claims of ineffective assistance of counsel and

violations of his right to due process.1        On November 14, 2011,

respondent Thomas Dickhaut moved for dismissal on the ground that

DeLong's petition contained unexhausted claims.           Although the

parties disagree as to precisely which claims were exhausted, it is

undisputed that some claims in DeLong's habeas petition had not

been previously raised before the Massachusetts state courts.

          On   November   30,   2011,   the   district   court   granted

Dickhaut's motion in an electronic order, which stated only:

"Motion allowed.    This case is dismissed as it contains both

exhausted and unexhausted claims.       Ros[e] v. Lundy, 455 U.S. 509,




     1
       DeLong also moved for appointment of counsel, but this
motion was denied.

                                  -3-
518-519 (1982) . . . ."       The case was dismissed on December 1,

2012.

            On December 21, 2012, the district court received from

DeLong a    handwritten   motion   for    extension   of   time    to   oppose

respondent's motion to dismiss, dated December 1, 2012.                    The

district court denied his motion as moot, as the case had already

been dismissed.     DeLong then sent a handwritten notice of appeal

listing the denial of his motion for extension of time and the

order denying this motion as moot, dated December 28, 2011.                He

mistakenly sent his appeal to this court, which we received on

January 3, 2012, and transmitted to the district court. The notice

of appeal was docketed by the district court clerk as an appeal

from both    the   district   court's    order   denying   the    motion   for

extension of time and the order dismissing the case.              DeLong also

sent a letter to the clerk of the district court, dated December

28, 2011, stating he had not received any notification from the

court regarding the dismissal of his case and requesting any

written decisions or rulings in his case.

            On February 1, 2012, this court ordered the district

court to issue or deny a certificate of appealability (COA) for its

final order, which the district court ultimately denied stating,

"this appeal would be frivolous."           DeLong then sought and was

granted by this court a COA to appeal from the dismissal of his

mixed habeas petition on the ground he was not given the option to


                                   -4-
delete his unexhausted claims and proceed only with his exhausted

claims.   We now review the district court's dismissal of DeLong's

§ 2254 petition.

                                I. Jurisdiction

           We    first   need    to   address   the    preliminary   issue   of

jurisdiction.     Specifically, Dickhaut challenges our jurisdiction

in this matter, arguing DeLong failed to file an appropriate notice

of appeal to the district court's dismissal of his case.              Recall,

if you will, that on December 28, DeLong filed a handwritten notice

of appeal.      In this notice, DeLong stated his appeal consisted of

the district court's denial of his motion for extension of time,

ruling the motion denied as moot.            It is Dickhaut's position that

even   though    DeLong's   notice     may    have    properly   evidenced   an

intention to appeal the district court's denial of his motion for

extension of time, it did not properly appeal the December 1 order

dismissing his habeas petition.         DeLong counters that his December

28 notice of appeal adequately evidenced an intention to appeal all

adverse rulings of the district court, including the dismissal of

his case, and was timely filed.         In order to determine if we have

jurisdiction to entertain this appeal we must determine whether

DeLong's notice of appeal was timely filed and provided sufficient

indication of his intention to appeal the district court's December

1 dismissal of his petition. See Campiti v. Matesanz, 333 F.3d 317,

319-20 (1st Cir. 2003).


                                       -5-
            We first address whether DeLong's notice was timely

filed.    The district court dismissed DeLong's habeas petition on

December 1, 2011 and DeLong's notice of appeal was not docketed

until January 3, 2012, more than thirty days later, ordinarily

considered untimely.     Fed. R. App. P. 4(a)(1)(A).   However, under

the "prison mailbox" rule, an inmate confined in a correctional

institution may file a notice of appeal by depositing it in the

institution's internal mail system on or before the last day of

filing.   Fed. R. App. P. 4(c)(1).      "Timely filing may be shown by

a declaration in compliance with 28 U.S.C. § 1746" that "set[s]

forth the date of deposit and state[s] that first-class postage was

prepaid."    Id.   DeLong dated his notice of appeal December 28,

2011, and sent it along with an affidavit (which he swore was true

under penalty of perjury) and a certificate of service that stated

the notice was mailed by first-class mail, postage prepaid.

Applying the "prison mailbox" rule, we deem the notice of appeal

filed on December 28, 2011, the date DeLong deposited it in prison

mail system, which was within thirty days of the December 1

dismissal of his case.    Thus, we hold DeLong's filing was timely.

See United States v. Correa-Torres, 326 F.3d 18, 21-22 (1st Cir.

2003).

            Having found the filing timely, we turn next to the

content of DeLong's appeal. A notice of appeal must "designate the

judgment, order, or part thereof being appealed."      Fed. R. App. P.


                                  -6-
3(c)(1)(B).      We construe this rule liberally, and consider the

notice in the context of the record in its entirety to ascertain

whether petitioner's intent to appeal was "sufficiently manifest."

See Markel Am. Ins. Co., v. Díaz-Santiago, 674 F.3d 21, 26 (1st

Cir. 2012). But liberal construction does not excuse noncompliance

with Rule 3, which "is fatal to an appeal."            Smith v. Barry, 502

U.S. 244, 248 (1992).

           Here, DeLong's notice of appeal challenges the district

court's order denying his motion for extension of time as moot, a

ruling based on the prior dismissal of his case.                  We examine

DeLong's notice of appeal in the context of the record as a whole

and note that the letter he sent to the district court clerk along

with the notice clearly referenced the December 1 dismissal of his

case.   See Markel Am. Ins. Co., 674 F.3d at 26.            DeLong's letter

explained he was not aware of the dismissal of his case until

December   27,   when   he   received   the   denial   of   his   motion   for

extension of time as moot.         We find DeLong's notice of appeal

"plainly evidences an intention to appeal" the district court's

entire order, which specifically mentioned the motion for extension

of time and indirectly referenced the dismissal of his case.               See

Campiti, 333 F.3d at 320.       Although the notice does not directly

cite the December 1 order, Rule 3 "buttressed by latitude for a pro

se litigant forgives . . . 'informalit[ies] of form.'"                     Id.

(alteration in original)(quoting Fed. R. App. P. 3(c)(4)).                 We


                                    -7-
conclude DeLong's intent to appeal the dismissal of his case was

sufficiently manifest.

          Having determined DeLong timely filed a notice that

plainly   evidenced    his   intent     to   appeal,   this   court   has

jurisdiction.

                 II. Dismissal of the Mixed Petition

          We now direct our attention to the district court's

dismissal of DeLong's petition, which we review for abuse of

discretion.     Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69,

74-75 (1st Cir. 2002).       Respondent argues a district court has

authority to dismiss a habeas petition containing both exhausted

and unexhausted claims outright, and doing so is not an abuse of

discretion.   DeLong counters that although district courts retain

discretion to summarily dismiss mixed petitions, that practice is

disfavored in this circuit.

          Prior to Congress' enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEPDA), the Supreme Court held

a federal district court must dismiss mixed habeas petitions

containing both exhausted and unexhausted claims.       Lundy, 455 U.S.

at 522.   Petitioners who submit mixed petitions are entitled to

resubmit a petition with only exhausted claims, or to exhaust the

remainder of their claims.     Id. at 520.2     We have held that where


     2
      This "total exhaustion" requirement directed federal courts
to dismiss mixed petitions without prejudice so petitioners could
return to federal court after exhausting their state law claims.

                                  -8-
a petition is deemed mixed, the best practice is for the district

court    to   give   the   petitioner    an   opportunity   to     dismiss   the

unexhausted claims. Clements v. Maloney, 485 F.3d 158, 168-69 (1st

Cir. 2007).      And then, if the petitioner declines to dismiss the

unexhausted claims, "the district court should dismiss the entire

petition without prejudice." Id. at 169. We have recommended that

district courts advise petitioners of the option, under Lundy, to

abandon   any    unexhausted    claims    and   consider    this    the   "wiser

practice."      Neverson v. Farquharson, 366 F.3d 32, 43 (1st Cir.

2004).

              A district court also has the option to stay the mixed

petition and hold it in abeyance while the petitioner exhausts the

unexhausted claims, then lift the stay and adjudicate the petition

once all claims are exhausted.3          Rhines, 544 U.S. at 275-76.         But

"stay and abeyance is only appropriate when the district court

determines there was good cause for the petitioner's failure to



Lundy, 455 U.S. at 520. The Supreme Court imposed this requirement
fourteen years before Congress enacted AEDPA, at a time when there
was no statute of limitations on the filing of a habeas petition.
Rhines v. Weber, 544 U.S. 269, 274 (2005).
     3
        Congress included in AEDPA the "total exhaustion"
requirement as well as a one-year statute of limitations for filing
exhausted claims in a federal habeas petition.        28 U.S.C. §§
2254(b)(1)(A), 2244(d).    To address the problems posed by the
interplay of these two provisions, the Supreme Court approved the
"stay and abeyance" procedure, noting that under AEDPA, petitioners
who bring mixed petitions "run the risk of forever losing their
opportunity for any federal review of their unexhausted claims."
Rhines, 544 U.S. at 275.

                                    -9-
exhaust" and even so, it would be an abuse of discretion for the

district court to grant a stay when the "unexhausted claims are

plainly meritless."4     Id. at 277.

          Here, respondent moved to dismiss the case, relying on

Lundy to argue a habeas corpus petition should be dismissed where

it contains both exhausted and unexhausted claims.    Without giving

DeLong the opportunity to delete his unexhausted claims, the

district court granted respondent's motion and dismissed the case,

stating: "This case is dismissed as it contains both exhausted and

unexhausted   claims."     This brief   order cited only   Lundy   and

included no explanation of the court's basis for dismissal.

          It is undisputed that DeLong presented a mixed habeas

petition to the district court, although there is some disagreement

as to which claims are unexhausted.      While we recognize that the

district court could not have adjudicated DeLong's mixed petition

as presented and had discretion to dismiss the petition, the best

practice would have been to allow DeLong to delete his unexhausted

claims, rather than summarily dismiss his petition.    See Clements,

485 F.3d at 168-69.       And although the district court also had

discretion to dismiss the mixed petition instead of granting a stay



     4
       In contrast, it would likely be an abuse of discretion for
a district court to dismiss a mixed petition instead of granting a
stay where: there is good cause for the failure to exhaust; the
"unexhausted claims are potentially meritorious"; and there is no
indication of "intentionally dilatory litigation tactics" by the
petitioner. Rhines, 544 U.S. at 278.

                                 -10-
and abeyance, dismissal would have been an abuse of discretion

unless the unexhausted claims were clearly meritless.    See Rhines,

544 U.S. at 278.

            On the record before us, it is unclear whether the court

evaluated the unexhausted claims and deemed them meritless or

simply followed the respondent's argument for dismissal under

Lundy.    We must be able to figure out what the district court judge

found and the basis for the findings to the extent necessary to

permit effective appellate review.      See United States v. Van, 87

F.3d 1, 3 (1st Cir. 1996).    We cannot do that here, given that the

district court's order includes no indication of the basis for

dismissal.     Under no circumstance could we affirm the district

court's dismissal "on the basis of a discretion the court did not

exercise."     Clair Recreation Ctr. v. Flynn, 897 F.2d 623, 624

(1990).    And so we see no choice but to vacate and remand the case

to the district court for reconsideration of its decision in light

of this opinion.   See United States v. Medina, 167 F.3d 77, 80 (1st

Cir. 1999).    No costs are awarded.




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