USCA1 Opinion

[NOT FOR PUBLICATION]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.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

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Cyr, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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____________________

Jimmy D. Batiste on brief pro se.

________________

Scott Harshbarger,
__________________

Attorney

General,

and

William J.
Mea
_________________

Assistant Attorney General, on brief for respondent.

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January 23, 1998

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Per Curiam.
__________

Petitioner

Jimmy Batiste

appeals pro

se

from a

2254

district court

judgment dismissing

habeas corpus petition.

state court

Two

convictions are

his 28

U.S.C.

successive Massachusetts

here at

issue.

Both involved

assault and battery with a dangerous weapon; both resulted in

prison

terms.

conviction.

Petitioner

seeks

Yet the district

time the instant petition

to

petitioner

was filed, the first sentence

had

490-91 (1989) (per

2254(a)).

second sentence.

petition on

custody" pursuant to

and sentence under attack.

first

the

dismissed the

was not "in

his

court determined that, at

expired and petitioner was serving his

court therefore

challenge

the ground

The

that

the conviction

See Maleng v. Cook, 490 U.S. 488,

___ ______
____

curiam) (citing 28 U.S.C.

2241(c)(3),

Petitioner has offered nothing, either below or on

appeal, to

call this

substantially

adding

conclusion into

question.

We

affirm

for the reasons recited by the district court,

only the following comments for purposes of emphasis.

Contrary

to petitioner's

did not run consecutively.

assertion, the

two sentences

His second sentence, rather than

constituting a "from and after" sentence under Mass. G.L.

279

take

8A, was imposed pursuant to Mass. G.L.

effect

sentence.

App.

"forthwith

See Dale v.
___ ____

Ct. 247, 249

and

c. 279

notwithstanding"

the

c.

27 to

first

Commissioner of Correction, 17 Mass.

__________________________

(1983) (noting that

-2-

"forthwith" sentence

imposed under

this provision "terminate[s]"

the preexisting

sentence); In re Kinney, 5 Mass. App. Ct. 457, 461 n.3 (1977)

____________

(same).

As consecutive

petitioner's reliance

sentences were

on Garlotte
________

not involved

v. Fordice,
_______

here,

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

habeas

petition directed

at his

first conviction

was used

See, e.g., Young

___ ____ _____

v. Vaughn, 83 F.3d 72, 75-76, 78 (3d Cir.),

______

cert. denied,
____________

117 S.

second sentence,

to enhance

propriety

of

such

the second

Ct. 333 (1996);

U.S. at 494 (leaving question open).

a procedure,

inasmuch as

see also
________

sentence.

Maleng, 490
______

We need not address the

however,

because

enhancement has been shown to have occurred here.

no

formal

sentencing enhancement

appearing in Mass. G.L. c. 265

triggered;

former,

despite

those

petitioner's

provisions

terms.

Petitioner

informal

enhancement was

are

instead

the

no such

Certainly

mechanism--such

as those

15A(a); id. c. 279

___

25--was

initial

reliance

inapplicable

suggests

undertaken.

that

Yet

by

some

on

the

their very

sort

of

various factors

belie such speculation--such as that the minimum term of

second

sentence (which

called

for

2 1/2

to

prison) was the lowest then permitted, and that

court

judge

eschewed

petitioner provided any

consecutive

10 years

in

the superior

sentence.

basis for suspecting that

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the

Nor

has

the first

conviction influenced the maximum term of the second sentence

or the timing of his eventual release.

Petitioner is correct

conviction not occurred,

in observing that, had

there would have been

the first

no reason to

impose a "forthwith" sentence for his second conviction.

this assertion accomplishes

were

petitioner able to

forthwith sentence would

nothing.

But

It does not mean that,

overturn his first

conviction, the

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

deprived him

the

of an

cancellation

of

adequate opportunity

views--is belied by the record.

Affirmed. See Loc. R. 27.1.

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scheduled

hearing

to articulate

his

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