USCA1 Opinion
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[NOT FOR PUBLICATION]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.
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