USCA1 Opinion

        January 26, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                 ____________________


        No. 93-1709
        No. 93-1868 



                        EMANUEL R. GRANGE, A/K/A TEDDY MURPHY,

                                     Petitioner,

                                          v.

                                  NORMAN J. BUTLER,

                                     Respondent.

                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Emanuel R. Grange, a/k/a Teddy Murphy on brief pro se.
            _____________________________________
            Scott  Harshbarger,  Attorney  General,  and  LaDonna  J.  Hatton,
            __________________                            ___________________
        Assistant Attorney General, on brief for appellee.


                                 ____________________


                                 ____________________























                      Per Curiam.   Appellant  Emanuel R.  Grange appeals
                      __________

            from  the dismissal  of his  petition  for a  writ of  habeas

            corpus  filed  under  28  U.S.C.     2254.    After carefully

            reviewing the parties'  briefs and the record,  we affirm the

            judgment  of the district  court for essentially  the reasons

            stated  in the Report  and Recommendation of  the magistrate-

            judge dated April 13, 1992.

                      Appellant's claim that his sentence was  "enhanced"

            upon   his  return  to  Massachusetts  in  violation  of  the

            prohibition  against ex post facto laws is meritless.  First,
                                 __ ____ _____

            it is not  cognizable under   2254.   That is, petitioner  is

            not "in custody" pursuant to a sentence concerning the charge

            of escape, having never been convicted of this crime.  See 28
                                                                   ___

            U.S.C.   2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989)
                              ______    ____

            (per  curiam).     Second,  petitioner's  sentence   was  not

            "enhanced"  based  on  a  violation of  M.G.L.  c.268,    16.

            Instead,  upon petitioner's return  in 1985 to Massachusetts,

            the time he had been  absent from the Commonwealth was simply

            added to the time he already had served.

                      As a result, petitioner's other claims on appeal --

            that  the district  court abused  its  discretion in  denying

            petitioner's request for reconsideration of the ex post facto
                                                            __ ____ _____

            claim and that  petitioner never consented or  authorized his

            attorney to waive this claim -- also are meritless.

                      Affirmed.
                      ________



                                         -2-