
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1247                                   RAFAEL MERCADO,                                     Petitioner,                                          v.                                STATE OF RHODE ISLAND,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Rafael Mercado on brief pro se.            ______________                                 ____________________                                   JANUARY 31, 1997                                 ____________________                 Per Curiam.  Rafael Mercado has appealed an order of the                 __________            district court, dated October  24, 1995, which, in accordance            with  a  magistrate  judge's recommendation,  denied  Mercado            leave  to file an untimely  appeal from the  January 17, 1995            denial of his  habeas corpus petition.  There was no error as            the court correctly concluded that the time within  which the            court  could extend the time  for appeal had already expired.            See  Fed. R. App. P. 4(a)(5).   Mercado does not contend that            ___            he  did not timely receive notice of the judgment denying his            habeas petition.  His claim that Fed. R. Civ. P. 60(b) should            serve to excuse his failure to appeal is unavailing.                 The order of October 24, 1995 is affirmed.                 __________________________________________                                         -2-
