
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          April 26, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -4-
