
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1531                                  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                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Jimmy D. Batiste on brief pro se.            ________________            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,            __________________                            ___________________        Assistant Attorney General, on brief for respondent.                                 ____________________                                   January 23, 1998                                 ____________________                 Per Curiam.   Petitioner  Jimmy Batiste  appeals pro  se                 __________            from a  district court  judgment dismissing  his 28  U.S.C.              2254  habeas corpus petition.   Two  successive Massachusetts            state court  convictions are  here at  issue.   Both involved            assault and battery with a dangerous weapon; both resulted in            prison  terms.   Petitioner  seeks  to  challenge  his  first            conviction.  Yet the district  court determined that, at  the            time the instant petition  was filed, the first sentence  had            expired and petitioner was serving his  second sentence.  The            court therefore  dismissed the  petition on  the ground  that            petitioner  was not "in  custody" pursuant to  the conviction            and sentence under attack.  See Maleng v. Cook, 490 U.S. 488,                                        ___ ______    ____            490-91 (1989) (per  curiam) (citing 28 U.S.C.     2241(c)(3),            2254(a)).  Petitioner has offered nothing, either below or on            appeal, to  call this  conclusion into  question.  We  affirm            substantially  for the reasons recited by the district court,            adding  only the following comments for purposes of emphasis.                 Contrary  to petitioner's  assertion, the  two sentences            did not run consecutively.   His second sentence, rather than            constituting a "from and after" sentence under Mass. G.L.  c.            279    8A, was imposed pursuant to Mass. G.L.  c. 279   27 to            take  effect   "forthwith  and  notwithstanding"   the  first            sentence.   See Dale v.  Commissioner of Correction, 17 Mass.                        ___ ____     __________________________            App.  Ct. 247, 249  (1983) (noting that  "forthwith" sentence                                         -2-            imposed under  this provision "terminate[s]"  the preexisting            sentence); In re Kinney, 5 Mass. App. Ct. 457, 461 n.3 (1977)                       ____________            (same).   As consecutive  sentences were  not involved  here,            petitioner's reliance  on Garlotte  v. Fordice,  515 U.S.  39                                      ________     _______            (1995), and Peyton v. Rowe, 391 U.S. 54 (1968), is misplaced.                        ______    ____                 Alternatively, petitioner contends that he is still able            to challenge  his  first conviction,  by  means of  a  habeas            petition directed  at his  second sentence,  inasmuch as  the            first conviction  was used  to enhance  the second  sentence.            See, e.g., Young  v. Vaughn, 83 F.3d 72, 75-76, 78 (3d Cir.),            ___  ____  _____     ______            cert. denied,  117 S.  Ct. 333 (1996);  see also  Maleng, 490            ____________                            ________  ______            U.S. at 494 (leaving question open).  We need not address the            propriety  of  such  a procedure,  however,  because  no such            enhancement has been shown to have occurred here.   Certainly            no  formal  sentencing enhancement  mechanism--such  as those            appearing in Mass. G.L. c. 265   15A(a); id. c. 279   25--was                                                     ___            triggered;  despite  petitioner's  initial  reliance  on  the            former,  those  provisions  are  inapplicable  by  their very            terms.    Petitioner  instead  suggests  that  some  sort  of            informal  enhancement was  undertaken.   Yet  various factors            belie such speculation--such as that the minimum term of  the            second  sentence (which  called  for  2 1/2  to  10 years  in            prison) was the lowest then permitted, and that  the superior            court  judge  eschewed  a  consecutive  sentence.    Nor  has            petitioner provided any  basis for suspecting that  the first                                         -3-            conviction influenced the maximum term of the second sentence            or the timing of his eventual release.                 Petitioner is correct  in observing that, had  the first            conviction not occurred,  there would have been  no reason to            impose a "forthwith" sentence for his second conviction.  But            this assertion accomplishes  nothing.  It does not mean that,            were  petitioner able to  overturn his first  conviction, the            forthwith sentence would  have been invalidly imposed.   More            important, it does not mean that his second sentence would be            reduced as a result.                   For these reasons, which the district court explained at            greater length, petitioner's contention that he satisfied the            "in  custody"  requirement  proves  mistaken.    His  further            complaint--that  the  cancellation  of  a  scheduled  hearing            deprived him  of an  adequate opportunity  to articulate  his            views--is belied by the record.                  Affirmed.  See Loc. R. 27.1.                 ____________________________                                         -4-
