[NOT FOR PUBLICATION]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

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                 Per Curiam.  Rafael Mercado has appealed an order of the
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            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
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            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.
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