[NOT FOR PUBLICATION]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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