      [NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                       For the First Circuit

No. 01-2478

                           EDSON TORO,
                      Petitioner, Appellant,

                                 v.

         ASHBEL T. WALL, DIRECTOR, DEP'T OF CORRECTIONS,
                      STATE OF RHODE ISLAND,
                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]

        [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]


                              Before

                      Selya, Lynch, and Lipez,

                          Circuit Judges.


     Larry J. Ritchie, by appointment of the court, for petitioner.
     Aaron L. Weisman, Assistant Attorney General, with whom
Sheldon Whitehouse, Attorney General, was on brief, for respondent.



                        September 27, 2002
          Per Curiam. On July 14, 1994, petitioner-appellant Edson

Toro was convicted in Providence County Superior Court of assault

with intent to commit murder.         See R.I. Gen. Laws § 11-5-1.      The

court sentenced Toro to serve an incarcerative term of ten years.1

On direct appeal, the Rhode Island Supreme Court affirmed his

conviction.    State v. Toro, 684 A.2d 1147 (R.I. 1996).         One of the

issues raised during that appeal related to the trial justice's

failure to give a jury instruction on self-defense.              The state

supreme court found the issue to be forfeited because a self-

defense instruction had not been requested in writing as required

by Rule 30 of the Rhode Island Rules of Criminal Procedure.              See

id. at 1149.

          The    petitioner    then   filed   an   application   for   post-

conviction     relief   in   the   state   superior    court.     In    that

application, he questioned not only the trial justice's refusal to

instruct the jury on self-defense but also whether he had received

effective assistance of counsel.           The trial justice denied the

application on March 9, 2000, and the petitioner again appealed to

the Rhode Island Supreme Court.




     1
      The petitioner has completed service of that sentence, but he
is still imprisoned on other charges. His habeas petition is not
moot, however, because the underlying conviction has collateral
consequences in respect to his continuing incarceration.       See,
e.g., Carafas v. LaVellee, 391 U.S. 234, 237 (1968); United States
v. Gallo, 20 F.3d 7, 11 (1st Cir. 1994).

                                      2
            While     that        appeal        was    pending,      the    petitioner

simultaneously sought a writ of habeas corpus in the United States

District Court for the District of Rhode Island.                       See 28 U.S.C. §

2254.   The issues raised included an alleged denial of due process

arising out of the trial justice's refusal to instruct the jury on

self-defense (thus foreclosing the petitioner from pursuing a valid

theory of defense).             After certain preliminary skirmishing, not

relevant     here     —     among     other      things,       the   district      court

appropriately required the petitioner to drop unexhausted claims

(such as his claim of ineffective assistance of counsel) before

proceeding       further    —    a   magistrate        judge   filed    a   report   and

recommendation suggesting that the habeas petition be denied. Toro

v. Wall, C.A. No. 00-561, magistrate's report and recommendation

(D.R.I. Sept. 12, 2001).             The gravamen of the recommendation was

the magistrate judge's conclusion that the state supreme court's

determination of procedural default constituted an independent and

adequate state ground of decision, not susceptible to federal

habeas review.       See id. at 8-9.        In due course, the district court

entered     an      order       accepting        the     report,       approving     the

recommendation, and dismissing the habeas petition.                      Toro v. Wall,

C.A. No. 00-561 (D.R.I. Oct. 1, 2001).

            On October 22, 2001, the scene shifted back to the state

courts.    On that date, the Rhode Island Supreme Court remanded the

petitioner's application for post-conviction relief to the trial


                                            3
justice for an evidentiary hearing.            State v. Toro, 785 A.2d 568

(R.I. 2001) (per curiam).       That hearing was held in June of 2002,

and the matter is currently under advisement in the state superior

court.

            Notwithstanding his victory before the state supreme

court, the petitioner continued to proceed on parallel fronts.                    He

asked    the     federal    district       court        for   a   certificate     of

appealability, 28 U.S.C. § 2253, and the district court granted one

on November 9, 2001.        The petitioner pressed his federal habeas

appeal and, on March 29, 2002, this court granted a supplementary

certificate of appealability and specified various issues, mainly

regarding      procedural   default,   that        it    wished   the   parties   to

address.    We also issued a briefing schedule and appointed counsel

for the petitioner.

            On September 12, 2002, we heard oral argument.                        We

explored with counsel the petitioner's central allegation:                      that

his trial attorney had not requested a self-defense instruction in

writing because the trial justice, at the charge conference, had

assured the attorney that he would instruct the jury on self-

defense.2      The assistant attorney general representing the state

candidly conceded that "the appropriate disposition" of this appeal


     2
      It is undisputed that the petitioner's trial attorney
objected to the omission of a self-defense instruction at the
conclusion of the court's charge and orally requested that the
court give a self-defense instruction. The objection and request
both occurred before the jury had retired to deliberate.

                                       4
was the entry of an order vacating the dismissal and "sending this

[matter] back to the district court for a factual determination

about whether the [trial justice's misleading statement] took

place."3

             We need go no further.           The state's point is well taken,

and the prosecutor's concession makes it apparent that the appeal

cannot (or, at least, should not) be decided without further

factfinding.          Accordingly, we vacate the order appealed from and

remand     the   matter      to   the   district   court   to   (1)   conduct   an

evidentiary hearing with respect to what transpired at the charge

conference       in    the   petitioner's     original   trial,   (2)   make    the

necessary findings as to whether the petitioner's trial attorney

was misled by the trial justice, and (3) make such other findings

and conclusions, and consider such other issues and arguments, as

may be appropriate under the circumstances.                 We hasten to add,

however, that the district court may, if it so chooses, await a

reasonably prompt decision from the state courts in order to see if

the state courts, in the course of adjudicating the petitioner's

ineffective assistance of counsel claim, determine whether or not

any misleading conduct took place at the charge conference.



             Vacated and remanded.



     3
      The assistant attorney general explained that if "there
appears to have been what we are describing as sandbagging, that
would be cause and prejudice" sufficient to overcome the procedural
default. See Bousley v. United States, 523 U.S. 614, 615 (1998)
(describing "cause" and "prejudice" standards).

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