
USCA1 Opinion

	




          December 28, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1677                                   JIMMY D. BATISTE,                                     Petitioner,                                          v.                SANDRA SCOTT, DIRECTOR OF HILLSIDE PRE-RELEASE CENTER,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Jimmy D. Batiste on brief pro se.            ________________            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,            __________________                            ___________________        Assistant Attorney General, on brief for respondent.                                 ____________________                                 ____________________                 Per  Curiam.     Petitioner  was  convicted   in  Boston                 ___________            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                             _________________            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,                                                ___  ____  ____    _____            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                    ______  ____  _______     _____            Cir.  1993); Tart  v. Massachusetts,  949 F.2d 490,  494 (1st                         ____     _____________            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            _________     ____                         ____            520-21 (plurality).                 The government  contends  that the  order  of  dismissal            concerned  only the first  petition, that the  district court                                         -3-            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                          ____            (since no responsive  pleading had been  filed).  See,  e.g.,                                                              ___   ____            Lacy v  Gabriel, 732  F.2d 7, 11  & n.1  (1st Cir.)  (Rule 15            ____    _______            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                               ______________________________            556-57 (1990).   Accord, e.g., Davis v. TXO  Prod. Corp., 929                             ______  ____  _____    ________________            F.2d 1515, 1517  (10th Cir. 1991);  Boelens v. Redman  Homes,                                                _______    ______________            Inc.,  759  F.2d  504,  508  (5th  Cir.  1985)  ("an  amended            ____                                         -4-            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.                 ____________________________________________                                         -5-
