Hunter v. Evans

¶4PER CURIAM:

¶5Appellant does have the right to bring his exhausted claims into federal court immediately. Under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), appellant has the option of amending his initial “mixed petition” to eliminate the unexhausted claims rather than repairing to state court. Filing a separate revised petition is equally appropriate. Yet, we cannot say that appellant has correctly exercised his rights under Rose since neither of his subsequent petitions were made part of the record. This lapse is not attributable to appellant, however, for the petitions should have become part of the record as a matter of course. Appellant brought his petitions pro se under 28 U.S.C. § 1915, in forma pauperis. Upon receipt of such a petition, the district court should have first docketed the petition and then considered the sufficiency of the allegations. See Watson v. Ault, 525 F.2d 886 (5th Cir.1976) (petition should be docketed *1489once economic eligibility determined). In that way, the petition would become part of the record available for review on appeal from dismissal. Since the district court did not comply with this procedure, the order refusing to docket the petition shall be vacated and the case remanded for further proceedings in accord with Watson.

¶6VACATED and REMANDED.