
USCA1 Opinion

	




        January 26, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1709        No. 93-1868                         EMANUEL R. GRANGE, A/K/A TEDDY MURPHY,                                     Petitioner,                                          v.                                  NORMAN J. BUTLER,                                     Respondent.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Emanuel R. Grange, a/k/a Teddy Murphy on brief pro se.            _____________________________________            Scott  Harshbarger,  Attorney  General,  and  LaDonna  J.  Hatton,            __________________                            ___________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Appellant  Emanuel R.  Grange appeals                      __________            from  the dismissal  of his  petition  for a  writ of  habeas            corpus  filed  under  28  U.S.C.     2254.    After carefully            reviewing the parties'  briefs and the record,  we affirm the            judgment  of the district  court for essentially  the reasons            stated  in the Report  and Recommendation of  the magistrate-            judge dated April 13, 1992.                      Appellant's claim that his sentence was  "enhanced"            upon   his  return  to  Massachusetts  in  violation  of  the            prohibition  against ex post facto laws is meritless.  First,                                 __ ____ _____            it is not  cognizable under   2254.   That is, petitioner  is            not "in custody" pursuant to a sentence concerning the charge            of escape, having never been convicted of this crime.  See 28                                                                   ___            U.S.C.   2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989)                              ______    ____            (per  curiam).     Second,  petitioner's  sentence   was  not            "enhanced"  based  on  a  violation of  M.G.L.  c.268,    16.            Instead,  upon petitioner's return  in 1985 to Massachusetts,            the time he had been  absent from the Commonwealth was simply            added to the time he already had served.                      As a result, petitioner's other claims on appeal --            that  the district  court abused  its  discretion in  denying            petitioner's request for reconsideration of the ex post facto                                                            __ ____ _____            claim and that  petitioner never consented or  authorized his            attorney to waive this claim -- also are meritless.                      Affirmed.                      ________                                         -2-
