                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    For The FIRST CIRCUIT

                                        

No. 93-1232

                      ROBERT G. DELLELO,
                         Petitioner,

                              v.

                 JOSEPH PONTE, ETC., ET AL.,
                         Respondents.

                                        
No. 93-1117

                      ROBERT G. DELLELO,
                         Petitioner,

                              v.

                      PAUL MURPHY, ETC.,
                         Respondent.
                                        

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

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

                                        

                            Before

                   Selya, Boudin and Stahl,
                       Circuit Judges.
                                     

                                        

   Robert G. Dellelo on brief pro se.
                    
   A. John  Pappalardo, United  States Attorney,  and Paula  J.
                                                               
DeGiacomo,  Assistant  United  States  Attorney,  on   brief  for
       
appellee.

                                        
                      September 14, 1993
                                        

          Per  Curiam.    Robert G.  Dellelo  challenges  the
                     

dismissal of  two related  petitions for  habeas corpus,  one

brought under 28 U.S.C.   2241, and the other under 28 U.S.C.

  2254.1   The petitions were dismissed for  failure to state

a claim upon which relief  could be granted.  Petitioner also

assigns  as error  the district  court's failure  to  hold an

evidentiary hearing and denial of a motion for discovery.  We

affirm the district court's judgments. 

          Most  of  the   relevant  procedural  history   was

summarized by the Massachusetts Appeals Court as follows:

     The petitioner  is serving a  life sentence without
     parole for first degree murder.  His conviction and

     sentence have been  upheld by the Supreme  Judicial
     Court.   Commonwealth  v. Dellelo,  349 Mass.  525,
                                      

     [209 N.E.2d 303]  (1965).  In 1974,  the petitioner
     was also  sentenced by  the United States  District

     Court in New Jersey to  a term of eighteen years in
     Federal prison  for bank  robbery [committed  while

     petitioner  was   an  escapee   from  Massachusetts
     prison, which sentence  is] to  commence after  his

     State   sentence   .   .  .   In   February,   1980
     Massachusetts  prison  officials   transferred  the

     petitioner  from  the   Massachusetts  Correctional

                    

1.  Petitioner is in a state prison serving a state sentence,
but he  alleges that due to a procedurally defective transfer
to federal prison in 1980, the state lost jurisdiction of his
case, and he should be  viewed as currently serving a federal
sentence.  See note 3 infra.  His claim arguably falls within
                           
either or both   2241 or   2254.  On petitioner's motion, the
district court  consolidated the petitions, a procedure which
we  think  makes  good  sense,  since  the  petitions  assert
identical facts and overlapping legal arguments.  

                             -2-

     Institution, Cedar Junction,  to the Federal bureau
     of  prisons   in  Lewisburg,  Pennsylvania.     The

     petitioner  was returned  to  the  custody  of  the
     Massachusetts Department of Corrections on December

     23, 1983.  On March  26, 1990, the petitioner filed
     his initial habeas corpus petition [in state court]

     which  was  dismissed  on  August  30,  1990.    On
     November 15,  1990, he  filed a  second application

     for a writ of habeas corpus [also  in state court].
     In both proceedings,  the petitioner contended that

     at the time  of his transfer to  the Federal prison
     in Lewisburg,  in February, 1980,  there existed no

     valid    contract    between    the   Massachusetts
     Commissioner  of Correction  and the  United States

     Attorney  General  authorizing   a  transfer.    He
     therefore alleged  that under  18 U.S.C.    5003(a)

     and  [M.] G.L.  c.  127,    97A,  his transfer  was
     unlawful and the Commonwealth had lost jurisdiction

     over  his  person  and  sentence.    He   requested
     immediate  release   to  the  custody   of  Federal

     authorities.  
     . . .

     The initial petition was  dismissed after a hearing
     and  [the state  court judge  dismissed  the second

     petition because]  there was  no  showing that  the
     ends  of justice  required  another hearing  on the

     same issue.   
Dellelo  v. Superintendent,  Old Colony  Correctional Center,
                                                            

No. 91-P-524, slip. op. at 1-2 (Mass. App. Ct. Nov. 12, 1991)
(footnote  omitted).2     The  Massachusetts   Appeals  Court

                    

2.  In addition to  the crimes mentioned in the  quoted text,
petitioner has also been convicted in state court of unlawful
escape on two  occasions, and the following  crimes committed
during   his  escapes:    unlawful  carrying  of  a  firearm;

                             -3-

affirmed  the  superior   court's  dismissal,  and  Dellelo's

application  for further  review was  denied  by the  Supreme

Judicial  Court.    Dellelo  v.  Superintendent,  Old  Colony
                                                             

Correctional  Ctr., 411  Mass.  1105,  1106,  586  N.E.2d  10
                  

(1991). 

          The  premise of the instant habeas petitions is the

same as that rejected by the state courts.  Petitioner argues

that  his  1980-83  transfer to  federal  prison  was invalid

because the contract between the state and federal government

authorizing  such transfers was  not signed by  a person whom

petitioner  considers  a  "proper"  state  official  under 18

U.S.C.    5003(a).3    The  federal  statute  authorizes  the

Attorney General  to contract  with "proper  officials" of  a

state for  the  custody  and  care of  persons  convicted  of

criminal  offenses  in  state   courts.    The  corresponding

                    

kidnapping; larceny from a person; and unlawful carrying of a
firearm.  Sentences for these crimes run "from and after" his
life  sentence.    In  federal  court,  petitioner  was  also
convicted  of  use  of  a  firearm during  the  bank  robbery
mentioned in the text.  

3.  From this premise, petitioner further reasons as follows:
the Commonwealth lost  jurisdiction over  petitioner when  it
transferred  him (illegally) to federal prison; he thus began
to serve  his federal sentence  at the time of  the transfer;
since  a  federal  sentence cannot  be  served  piecemeal, he
continued  to serve  that sentence  when he  was returned  to
state prison and, having now served 12 of the 18 years on his
federal sentence without a parole hearing, he is  entitled to
immediate release  from the  federal sentence.   We need  not
reach each turn in petitioner's reasoning since we reject his
starting premise. 

                             -4-

Massachusetts   statute   authorizes  the   commissioner   of

corrections to enter into such contracts with the approval of

the  governor.   M.G.L.  c.  127,     97A.   Petitioner  sees

illegality in the fact that William Hogan, the person serving

as  commissioner of corrections  on the date  of petitioner's

transfer, never signed such a contract.  Respondent prevailed

in state court on a showing that petitioner's transfer was in

accordance with a contract  authorizing such transfers signed

by Commissioner Hogan's predecessor in 1973. 

          The contract's existence,  genuineness, scope, term

and coverage, as  well as the parties'  contracting authority

are largely questions of historical fact.  The state  court's

determination  of these matters is entitled to a "presumption

of  correctness" on  a  petition for  habeas corpus  under 28

U.S.C.   2254(d).   See Marshall v. Lonberger,  459 U.S. 422,
                                             

432  (1983);   Sumner v.  Mata,  455 U.S.  591 (1982)  (state
                              

courts' factual findings are  entitled to a "high measure  of

deference" unless  the findings  lack "fair  support" in  the

record).  

          Section  2254  provides  that  in  the  absence  of

enumerated  circumstances  making  a  hearing mandatory,  the

federal  court is  bound  by the  state  court's findings  of

historical fact,  unless  the  petitioner  offers  convincing

evidence  that  the findings  are  erroneous.   This  rule is

consistent with Townsend v. Sain,  372 U.S. 293, 312  (1963).
                                

                             -5-

See Leavitt  v. Howard, 462  F.2d 992, 995 (1st  Cir.), cert.
                                                             

denied,  409 U.S.  884 (1972).   We  have reviewed  the state
      

court record and  we agree with the district  court that none

of  the enumerated  circumstances are  present.4   The  state

court had  before it all  the facts, including copies  of all

relevant   contracts   and   their   terms,  petitioner   was

represented there by counsel, and the court's  hearing was as

full as necessary, fair, and adequate to resolve these issues

of contractual interpretation.   Petitioner  offered in  this

proceeding  no reason to  suppose that he  could overcome, by

convincing evidence, the presumption imposed  by   2254.  See
                                                             

Leavitt, 462 F.2d at 995.      
       

          Insofar as this  contract issue may be  viewed as a

mixed question  of fact and  law, petitioner offers  no legal

authority  nor reasoned argument  in support of  his unlikely

                    

4.  The  district  court's  dismissal,  styled  as   one  for
"failure to  state a claim" was in  accordance with Rule 8 of
the Rules Governing    2254 cases, which states  that when an
evidentiary  hearing is not  required, "the judge  shall make
such disposition of  the petition as justice  shall require."
Under Rule  11 the district  court has discretion to  use the
Federal Rules of Civil Procedure in appropriate cases.  Under
the  latter  rules   the  dismissal  might  also   have  been
characterized  as  a  summary judgment  since  the  court had
before  it, in addition to the parties' pleadings, voluminous
exhibits which  constituted virtually the entire  state court
record.   See  Fed. R.  Civ.  P.  12(c), 56.    Whatever  the
             
nomenclature, however, we  are convinced that petitioner  was
afforded a reasonable and  meaningful opportunity to  present
all pertinent evidence  and the result, dismissal  without an
evidentiary hearing, was correct. 

                             -6-

premise.5   In  any event,  we  agree with  the Massachusetts

Appeals Court's alternative  holding that "even assuming  the

absence  of  a valid  contract  at the  time  of petitioner's

transfer . . . which we do not conclude, the petitioner['s] .

. .  only remedy  for an  improper transfer  was a  return to

state prison, which has already been effected."  Dellelo, No.
                                                        

91-P-524, slip op. at 4.   This result is supported  by state

cases  and   analogous  federal  case  law.    See  Blake  v.
                                                         

Commissioner  of Correction, 390  Mass. 537, 538,  457 N.E.2d
                           

281  (1983)  (prisoners  improperly  transferred  to  federal

correctional facility were properly ordered returned to state

facilities); Ladetto v. Commissioner of Correction, 373 Mass.
                                                  

859, 369  N.E.2d 967  (1977) (a prisoner  is not  entitled to

pardon   of  his  state  sentence  nor  release  from  prison

following  a procedurally  defective  transfer  to a  federal

prison; the proper  remedy is a return to  state prison); see
                                                             

also Stevenson v. Thornburgh,  943 F.2d 1214, 1214 n.2  (10th
                            

Cir.  1991) (any alleged impropriety in execution of prisoner

transfer  agreement between state and federal authorities was

rendered  moot by the complete performance of all obligations

on both sides).  

                    

5.  Although petitioner appears pro se, he was represented by
                                      
counsel in  the state  court.  A  perusal of  counsel's state
court  memoranda and all the  papers filed below also reveals
no legal authority or other support for this unusual premise,
and we know of none.

                             -7-

          There is  no merit to petitioner's  contention that

the state lost jurisdiction when it transferred petitioner to

a federal prison.   The statutes  under which petitioner  was

transferred expressly  presuppose the continuing  vitality of

the state  sentence.  M.G.L.  c. 127,   97A  (transferees are

subject to the  terms of their original sentences  and to the

provisions  of law  governing discharge);  see  also Howe  v.
                                                         

Smith, 452 U.S. 473, 484 (1981)  (purpose of 18 U.S.C.   5003
     

authorizing   transfer arrangements  is to  help states  with

insufficient  correctional facilities  by providing  space in

exchange  for  reimbursement  by state  for  care  of state's

prisoners);  Schertz v.  Nix, 975 F.2d  1382, 1384  (8th Cir.
                            

1992)  (terms  of  state  disciplinary  confinement  are  not

negated  by prisoner's transfer to a  federal prison under 18

U.S.C.      5003(a)(1)  and   placement  in   general  prison

population while there).      Petitioner's reliance  on cases

such  as Shields v. Beto, 370  F.2d 1003 (5th Cir. 1967), and
                        

Thompson v. Bannan, 298 F.2d  611, 612 (6th Cir. 1962), cert.
                                                             

denied, 370 U.S. 957 is misplaced.  The present case does not
      

involve   extradition,  a   waiver,   nor  any   circumstance

suggesting a relinquishment by the state of its authority  to

exact the sentence imposed by its courts.  Cf., e.g., Venable
                                                             

v. Thornburgh,  766 F.  Supp. 1012 (D.  Kan. 1991)   (because
             

transfer to federal  custody was lawful and  authorized under

18   U.S.C.     5003,   reliance  on  extradition   cases  is

                             -8-

misplaced); Joyner v. Henman, 755 F. Supp. 982 (D. Kan. 1991)
                            

(same); 

          We also  see  no merit  to  petitioner's  remaining

assignments of error.   The district court did  not abuse its

discretion  in denying  petitioner's motion for  discovery in

light of  the full state  court record  and the  lack of  any

legal basis for petitioner's claim.   And the district  court

did not  err in  dismissing petitioner's  claim  that he  was

denied due process  or equal  protection because  he was  not

afforded a state  administrative hearing prior to  the prison

transfer.    Whatever the merit of  that argument, petitioner

did not assert  it in his state court  petitions, although he

had every opportunity to do  so.  "The exhaustion requirement

is not satisfied if petitioner presents new legal theories or

new factual allegations  in federal court that  transform his

case or  cast it in  a wholly  different light."   Carillo v.
                                                          

Brown,  807  F.2d  1094 (1st  Cir.  1986)  (citing  Picard v.
                                                          

Connor, 404 U.S. 270, 275 (1971)).
      

          Accordingly, we deny the petition for a certificate
                              

of probable cause  to appeal the dismissal under  28 U.S.C.  

2254, and we affirm the judgment of district court dismissing
                   

the petition under 28 U.S.C.   2241.

                             -9-
