
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                For The FIRST CIRCUIT                                 ___________________          No. 93-1232                                  ROBERT G. DELLELO,                                     Petitioner,                                          v.                             JOSEPH PONTE, ETC., ET AL.,                                     Respondents.                                  __________________          No. 93-1117                                              ROBERT G. DELLELO,                                     Petitioner,                                          v.                                  PAUL MURPHY, ETC.,                                     Respondent.                                  __________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Robert G. Dellelo on brief pro se.               _________________               A. John  Pappalardo, United  States Attorney,  and Paula  J.               ___________________                                _________          DeGiacomo,  Assistant  United  States  Attorney,  on   brief  for          _________          appellee.                                  __________________                                  September 14, 1993                                  __________________                      Per  Curiam.    Robert G.  Dellelo  challenges  the                      ___________            dismissal of  two related  petitions for  habeas corpus,  one            brought under 28 U.S.C.   2241, and the other under 28 U.S.C.              2254.1   The petitions were dismissed for  failure to state            a claim upon which relief  could be granted.  Petitioner also            assigns  as error  the district  court's failure  to  hold an            evidentiary hearing and denial of a motion for discovery.  We            affirm the district court's judgments.                       Most  of  the   relevant  procedural  history   was            summarized by the Massachusetts Appeals Court as follows:                 The petitioner  is serving a  life sentence without                 parole for first degree murder.  His conviction and                 sentence have been  upheld by the Supreme  Judicial                 Court.   Commonwealth  v. Dellelo,  349 Mass.  525,                          ____________     _______                 [209 N.E.2d 303]  (1965).  In 1974,  the petitioner                 was also  sentenced by  the United States  District                 Court in New Jersey to  a term of eighteen years in                 Federal prison  for bank  robbery [committed  while                 petitioner  was   an  escapee   from  Massachusetts                 prison, which sentence  is] to  commence after  his                 State   sentence   .   .  .   In   February,   1980                 Massachusetts  prison  officials   transferred  the                 petitioner  from  the   Massachusetts  Correctional                                            ____________________            1.  Petitioner is in a state prison serving a state sentence,            but he  alleges that due to a procedurally defective transfer            to federal prison in 1980, the state lost jurisdiction of his            case, and he should be  viewed as currently serving a federal            sentence.  See note 3 infra.  His claim arguably falls within                       ___        _____            either or both   2241 or   2254.  On petitioner's motion, the            district court  consolidated the petitions, a procedure which            we  think  makes  good  sense,  since  the  petitions  assert            identical facts and overlapping legal arguments.                                           -2-                 Institution, Cedar Junction,  to the Federal bureau                 of  prisons   in  Lewisburg,  Pennsylvania.     The                 petitioner  was returned  to  the  custody  of  the                 Massachusetts Department of Corrections on December                 23, 1983.  On March  26, 1990, the petitioner filed                 his initial habeas corpus petition [in state court]                 which  was  dismissed  on  August  30,  1990.    On                 November 15,  1990, he  filed a  second application                 for a writ of habeas corpus [also  in state court].                 In both proceedings,  the petitioner contended that                 at the time  of his transfer to  the Federal prison                 in Lewisburg,  in February, 1980,  there existed no                 valid    contract    between    the   Massachusetts                 Commissioner  of Correction  and the  United States                 Attorney  General  authorizing   a  transfer.    He                 therefore alleged  that under  18 U.S.C.    5003(a)                 and  [M.] G.L.  c.  127,    97A,  his transfer  was                 unlawful and the Commonwealth had lost jurisdiction                 over  his  person  and  sentence.    He   requested                 immediate  release   to  the  custody   of  Federal                 authorities.                   . . .                 The initial petition was  dismissed after a hearing                 and  [the state  court judge  dismissed  the second                 petition because]  there was  no  showing that  the                 ends  of justice  required  another hearing  on the                 same issue.               Dellelo  v. Superintendent,  Old Colony  Correctional Center,            _______     ________________________________________________            No. 91-P-524, slip. op. at 1-2 (Mass. App. Ct. Nov. 12, 1991)            (footnote  omitted).2     The  Massachusetts   Appeals  Court                                            ____________________            2.  In addition to  the crimes mentioned in the  quoted text,            petitioner has also been convicted in state court of unlawful            escape on two  occasions, and the following  crimes committed            during   his  escapes:    unlawful  carrying  of  a  firearm;                                         -3-            affirmed  the  superior   court's  dismissal,  and  Dellelo's            application  for further  review was  denied  by the  Supreme            Judicial  Court.    Dellelo  v.  Superintendent,  Old  Colony                                _______      ____________________________            Correctional  Ctr., 411  Mass.  1105,  1106,  586  N.E.2d  10            __________________            (1991).                       The  premise of the instant habeas petitions is the            same as that rejected by the state courts.  Petitioner argues            that  his  1980-83  transfer to  federal  prison  was invalid            because the contract between the state and federal government            authorizing  such transfers was  not signed by  a person whom            petitioner  considers  a  "proper"  state  official  under 18            U.S.C.    5003(a).3    The  federal  statute  authorizes  the            Attorney General  to contract  with "proper  officials" of  a            state for  the  custody  and  care of  persons  convicted  of            criminal  offenses  in  state   courts.    The  corresponding                                            ____________________            kidnapping; larceny from a person; and unlawful carrying of a            firearm.  Sentences for these crimes run "from and after" his            life  sentence.    In  federal  court,  petitioner  was  also            convicted  of  use  of  a  firearm during  the  bank  robbery            mentioned in the text.              3.  From this premise, petitioner further reasons as follows:            the Commonwealth lost  jurisdiction over  petitioner when  it            transferred  him (illegally) to federal prison; he thus began            to serve  his federal sentence  at the time of  the transfer;            since  a  federal  sentence cannot  be  served  piecemeal, he            continued  to serve  that sentence  when he  was returned  to            state prison and, having now served 12 of the 18 years on his            federal sentence without a parole hearing, he is  entitled to            immediate release  from the  federal sentence.   We need  not            reach each turn in petitioner's reasoning since we reject his            starting premise.                                                            -4-            Massachusetts   statute   authorizes  the   commissioner   of            corrections to enter into such contracts with the approval of            the  governor.   M.G.L.  c.  127,     97A.   Petitioner  sees            illegality in the fact that William Hogan, the person serving            as  commissioner of corrections  on the date  of petitioner's            transfer, never signed such a contract.  Respondent prevailed            in state court on a showing that petitioner's transfer was in            accordance with a contract  authorizing such transfers signed            by Commissioner Hogan's predecessor in 1973.                       The contract's existence,  genuineness, scope, term            and coverage, as  well as the parties'  contracting authority            are largely questions of historical fact.  The state  court's            determination  of these matters is entitled to a "presumption            of  correctness" on  a  petition for  habeas corpus  under 28            U.S.C.   2254(d).   See Marshall v. Lonberger,  459 U.S. 422,                                ___ ________    _________            432  (1983);   Sumner v.  Mata,  455 U.S.  591 (1982)  (state                           ______     ____            courts' factual findings are  entitled to a "high measure  of            deference" unless  the findings  lack "fair  support" in  the            record).                        Section  2254  provides  that  in  the  absence  of            enumerated  circumstances  making  a  hearing mandatory,  the            federal  court is  bound  by the  state  court's findings  of            historical fact,  unless  the  petitioner  offers  convincing            evidence  that  the findings  are  erroneous.   This  rule is            consistent with Townsend v. Sain,  372 U.S. 293, 312  (1963).                            ________    ____                                         -5-            See Leavitt  v. Howard, 462  F.2d 992, 995 (1st  Cir.), cert.            ___ _______     ______                                  _____            denied,  409 U.S.  884 (1972).   We  have reviewed  the state            ______            court record and  we agree with the district  court that none            of  the enumerated  circumstances are  present.4   The  state            court had  before it all  the facts, including copies  of all            relevant   contracts   and   their   terms,  petitioner   was            represented there by counsel, and the court's  hearing was as            full as necessary, fair, and adequate to resolve these issues            of contractual interpretation.   Petitioner  offered in  this            proceeding  no reason to  suppose that he  could overcome, by            convincing evidence, the presumption imposed  by   2254.  See                                                                      ___            Leavitt, 462 F.2d at 995.                  _______                      Insofar as this  contract issue may be  viewed as a            mixed question  of fact and  law, petitioner offers  no legal            authority  nor reasoned argument  in support of  his unlikely                                            ____________________            4.  The  district  court's  dismissal,  styled  as   one  for            "failure to  state a claim" was in  accordance with Rule 8 of            the Rules Governing    2254 cases, which states  that when an            evidentiary  hearing is not  required, "the judge  shall make            such disposition of  the petition as justice  shall require."            Under Rule  11 the district  court has discretion to  use the            Federal Rules of Civil Procedure in appropriate cases.  Under            the  latter  rules   the  dismissal  might  also   have  been            characterized  as  a  summary judgment  since  the  court had            before  it, in addition to the parties' pleadings, voluminous            exhibits which  constituted virtually the entire  state court            record.   See  Fed. R.  Civ.  P.  12(c), 56.    Whatever  the                      ___            nomenclature, however, we  are convinced that petitioner  was            afforded a reasonable and  meaningful opportunity to  present            all pertinent evidence  and the result, dismissal  without an            evidentiary hearing, was correct.                                          -6-            premise.5   In  any event,  we  agree with  the Massachusetts            Appeals Court's alternative  holding that "even assuming  the            absence  of  a valid  contract  at the  time  of petitioner's            transfer . . . which we do not conclude, the petitioner['s] .            . .  only remedy  for an  improper transfer  was a  return to            state prison, which has already been effected."  Dellelo, No.                                                             _______            91-P-524, slip op. at 4.   This result is supported  by state            cases  and   analogous  federal  case  law.    See  Blake  v.                                                           ___  _____            Commissioner  of Correction, 390  Mass. 537, 538,  457 N.E.2d            ___________________________            281  (1983)  (prisoners  improperly  transferred  to  federal            correctional facility were properly ordered returned to state            facilities); Ladetto v. Commissioner of Correction, 373 Mass.                         _______    __________________________            859, 369  N.E.2d 967  (1977) (a prisoner  is not  entitled to            pardon   of  his  state  sentence  nor  release  from  prison            following  a procedurally  defective  transfer  to a  federal            prison; the proper  remedy is a return to  state prison); see                                                                      ___            also Stevenson v. Thornburgh,  943 F.2d 1214, 1214 n.2  (10th            ____ _________    __________            Cir.  1991) (any alleged impropriety in execution of prisoner            transfer  agreement between state and federal authorities was            rendered  moot by the complete performance of all obligations            on both sides).                                              ____________________            5.  Although petitioner appears pro se, he was represented by                                            ___ __            counsel in  the state  court.  A  perusal of  counsel's state            court  memoranda and all the  papers filed below also reveals            no legal authority or other support for this unusual premise,            and we know of none.                                         -7-                      There is  no merit to petitioner's  contention that            the state lost jurisdiction when it transferred petitioner to            a federal prison.   The statutes  under which petitioner  was            transferred expressly  presuppose the continuing  vitality of            the state  sentence.  M.G.L.  c. 127,   97A  (transferees are            subject to the  terms of their original sentences  and to the            provisions  of law  governing discharge);  see  also Howe  v.                                                       _________ ____            Smith, 452 U.S. 473, 484 (1981)  (purpose of 18 U.S.C.   5003            _____            authorizing   transfer arrangements  is to  help states  with            insufficient  correctional facilities  by providing  space in            exchange  for  reimbursement  by state  for  care  of state's            prisoners);  Schertz v.  Nix, 975 F.2d  1382, 1384  (8th Cir.                         _______     ___            1992)  (terms  of  state  disciplinary  confinement  are  not            negated  by prisoner's transfer to a  federal prison under 18            U.S.C.      5003(a)(1)  and   placement  in   general  prison            population while there).      Petitioner's reliance  on cases            such  as Shields v. Beto, 370  F.2d 1003 (5th Cir. 1967), and                     _______    ____            Thompson v. Bannan, 298 F.2d  611, 612 (6th Cir. 1962), cert.            ________    ______                                      _____            denied, 370 U.S. 957 is misplaced.  The present case does not            ______            involve   extradition,  a   waiver,   nor  any   circumstance            suggesting a relinquishment by the state of its authority  to            exact the sentence imposed by its courts.  Cf., e.g., Venable                                                       ___  ____  _______            v. Thornburgh,  766 F.  Supp. 1012 (D.  Kan. 1991)   (because               __________            transfer to federal  custody was lawful and  authorized under            18   U.S.C.     5003,   reliance  on  extradition   cases  is                                         -8-            misplaced); Joyner v. Henman, 755 F. Supp. 982 (D. Kan. 1991)                        ______    ______            (same);                       We also  see  no merit  to  petitioner's  remaining            assignments of error.   The district court did  not abuse its            discretion  in denying  petitioner's motion for  discovery in            light of  the full state  court record  and the  lack of  any            legal basis for petitioner's claim.   And the district  court            did not  err in  dismissing petitioner's  claim  that he  was            denied due process  or equal  protection because  he was  not            afforded a state  administrative hearing prior to  the prison            transfer.    Whatever the merit of  that argument, petitioner            did not assert  it in his state court  petitions, although he            had every opportunity to do  so.  "The exhaustion requirement            is not satisfied if petitioner presents new legal theories or            new factual allegations  in federal court that  transform his            case or  cast it in  a wholly  different light."   Carillo v.                                                               _______            Brown,  807  F.2d  1094 (1st  Cir.  1986)  (citing  Picard v.            _____                                               ______            Connor, 404 U.S. 270, 275 (1971)).            ______                      Accordingly, we deny the petition for a certificate                                      ____            of probable cause  to appeal the dismissal under  28 U.S.C.              2254, and we affirm the judgment of district court dismissing                         ______            the petition under 28 U.S.C.   2241.                                         -9-
