[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        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]
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                                 ____________________



                                        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.
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            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,
            __________________                            ___________________

        Assistant Attorney General, on brief for respondent.





                                 ____________________



                                   January 23, 1998

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                 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,
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            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.
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            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)
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            (same).   As consecutive  sentences were  not involved  here,



            petitioner's reliance  on Garlotte  v. Fordice,  515 U.S.  39
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            (1995), and Peyton v. Rowe, 391 U.S. 54 (1968), is misplaced.
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                 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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