Fuentes v. Vose, Director
Case Date: 04/26/1995
Court: United States Court of Appeals
Docket No: 94-1637
|
April 26, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1637 SAMUEL FUENTES, Petitioner, Appellant, v. GEORGE A. VOSE, DIRECTOR OF ADULT CORRECTIONAL INSTITUTION, Respondent, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________ ____________________ Before Torruella, Chief Judge, ___________ Cyr and Stahl, Circuit Judges. ______________ ____________________ Samuel Fuentes on brief pro se. ______________ Michael B. Grant on brief for appellee. ________________ ____________________ ____________________ Per Curiam. Petitioner Samuel Fuentes appeals from __________ the denial of his petition for habeas corpus relief filed under 28 U.S.C. 2254. He claimed that officials of the Rhode Island Adult Correctional Institutions (ACI) were required to reactivate a moribund prisoner blood donation program during the years 1983 to 1988. The district court denied the petition on the merits, finding that there was no need for blood donations during this time period. Until its repeal in 1988, R.I. Gen. Laws 42-56-25 provided as follows: In addition to any time allowed for good behavior pursuant to section 42-56- 24 any prisoner sentenced to imprisonment for thirty (30) days of [sic] more in the adult correctional institutions . . . shall be entitled to have deducted from the term or terms of sentence of such prisoner ten (10) days for each pint of his or her blood donated by him or her to any veterans' organization, civil defense unit, hospital, the armed forces of the United States, or the Red Cross or any fraternal or religious organizations or for the purposes of scientific research. Each prisoner shall be limited to four (4) donations each year. Petitioner states that he began donating blood pursuant to 42-56-25 in 1979 and received a total deduction of 90 days from his sentence. He alleges that prison authorities discontinued the program in 1983 even though the statute remained in effect until 1988. Attached to the 2254 petition is a memorandum dated May 20, 1993 from a deputy warden to petitioner. The -2- memorandum appears to have been written in response to a request by petitioner to donate blood. It denies petitioner's request, stating that there has been no blood donation program since February 1983. There is no evidence that petitioner asked, at any other time, to give blood. As relief, petitioner requested a credit of 200 days for the blood he would have donated from 1983 until 1988 -- about 33 days per year. We need not reach the merits of petitioner's claim because there is no evidence that he ever presented it to the Rhode Island courts. Thus, it appears that he has not exhausted state remedies. Principles of comity and the requirements of 2254(b) generally provide that the state should have the first opportunity to address this kind of constitutional claim. See Nadworny v. Fair, 872 F.2d 1093, ___ ________ ____ 1096 (1st Cir. 1989). In this context, we note that there is a state remedy available to petitioner. Under R.I. Gen. Laws 10- 9.1-1, petitioner may, at any time, file an application for post conviction review of the alleged unlawfulness of his custody. Further, 10-9.1-5 provides that indigent applicants are entitled to representation by a public defender. We therefore remand the matter to the district ______ court with instructions to dismiss the petition without -3- prejudice so that petitioner may exhaust state remedies. -4- |