Fuentes v. Vose, Director ( 1995 )

USCA1 Opinion

          April 26, 1995
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 94-1637 

                                   SAMUEL FUENTES,

                                Petitioner, Appellant,

                                          v.

             GEORGE A. VOSE, DIRECTOR OF ADULT CORRECTIONAL INSTITUTION,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                 ____________________

                                        Before

                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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                                 ____________________

            Samuel Fuentes on brief pro se.
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            Michael B. Grant on brief for appellee.
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                      Per Curiam.  Petitioner Samuel Fuentes appeals from
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            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


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            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,
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            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
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            court with  instructions  to  dismiss  the  petition  without



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            prejudice so that petitioner may exhaust state remedies.



















































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