

                    [NOT FOR PUBLICATION]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

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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

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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.                                             

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