Unpublished Disposition, 927 F.2d 608 (9th Cir. 1991)

MEMORANDUM^** 

PROCEDURAL BACKGROUND

Appellant Robert David Earll is a prisoner at the Arizona State prison complex in Florence, Arizona. He filed a petition for writ of habeas corpus with the clerk of the court below. His grounds relate to sanctions imposed at a prison disciplinary hearing. Earll did not present those grounds to the state's highest court. His excuse for not doing so is that when he filed his habeas corpus petition with the state court, the disciplinary hearing had not yet occurred.

The district court dismissed the petition for failure to exhaust state remedies.

DISCUSSION

This court reviews habeas corpus dismissals de novo. U.S. v. Popoola, 881 F.2d 811, (9th Cir. 1989). In this case, the failure of Earll to exhaust his state remedies by presenting the issue he raises here to the courts of Arizona appears from the face of the record. In fact, Earll affirmatively alleges the fact that these issues were not presented to the courts of Arizona. His excuse that the disciplinary hearing had not yet occurred at the time he filed a petition with the state court system is unavailing, as he makes no showing of any reason why a petition embodying these issues could not have been filed with the courts of Arizona.

As the district court noted, exhaustion is a prerequisite to filing a petition for writ of habeas corpus with the federal courts. Rose v. Lundy, 455 U.S. 509 (1982). As the district court states: "Exhaustion requires that petitioner's claims be fairly presented to the highest court to provide that court with an opportunity to rule on the merits of petitioner's federal claims." See also Middleton v. Cupp, 768 F.2d 1083 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). The district court followed the reasoning of Preiser v. Rodriquez, 411 U.S. 475 (1973):

It is clear to us that the result must be the same in the case of a state prisoner's challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action. Such a challenge is just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from the confinement or the shortening of its duration.

411 U.S. at 489.

The district court was correct in dismissing petitioner's writ of habeas corpus petition for failure to exhaust state remedies. The order appealed from is AFFIRMED.