Unpublished Disposition, 894 F.2d 409 (9th Cir. 1988)

MEMORANDUM^** 

John Joseph Albano, a Nevada state prisoner, appeals the decision of the district court denying his motion under 42 U.S.C. § 1983 for a preliminary injunction, which would vacate the revocation of his probation and end his confinement. The district court determined that a preliminary injunction would result in his release and thus should be considered as a petition for habeas corpus. In so determining the district court denied the preliminary injunction and stayed Albano's claim pending exhaustion of state remedies, as required for a habeas corpus petition. McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986). We affirm.

BACKGROUND

John Joseph Albano was convicted on August 1, 1985 of Offering, Agreeing or Arranging to Sell a Controlled Substance (cocaine) in violation of Nevada law. NEV.REV.STAT.ANN. Sec. 453.323(3) (Michie 1988). Albano was placed on probation for an indeterminate time, not to exceed one year. On April 6, 1987, at a formal revocation hearing held before a Nevada district court, the state revoked Albano's sentence of probation and imposed a sentence of six years in prison for violation of the conditions of probation.

Albano filed his initial complaint alleging violation of his constitutional right to due process on March 30, 1987. On May 11, 1987 defendants filed a motion to dismiss. The district court determined that this motion should be treated as a motion for summary judgment. On June 23, 1987, Albano filed a motion for a preliminary injunction. On July 13, 1987, Albano filed an amended complaint seeking damages and preliminary relief under 42 U.S.C. § 1983, again on the ground that his due process rights were violated. On April 18, 1988, the district court denied defendants motion for summary judgment, except as to the state, and denied Albano's motion for preliminary injunction, on the ground that it should properly have been brought as a petition for habeas corpus because it would terminate his confinement. The district court stayed Albano's request for relief under Sec. 1983 pending exhaustion of his state remedies on the habeas corpus petition. McQuown, 795 F.2d at 809. Albano appeals the district court's denial of his preliminary injunction.

DISCUSSION

This court reviews the dismissal for failure to state a claim under 42 U.S.C. § 1983 de novo. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986).¹  Albano contends that the district court erred in construing his request for a preliminary injunction as a petition for habeas corpus. He also asserts that he had exhausted his state remedies. These contentions lack merit.

The exclusive remedy in federal courts for those seeking to shorten or end their confinement is through a petition for habeas corpus. Preiser v. Rodriquez, 411 U.S. 475, 487-88 (1973), Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984). Injunctive relief may be granted under 42 U.S.C. § 1983 only to the extent that the injunction would not shorten the duration of state confinement. Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974), Ybarra, 723 F.2d at 682 n. 5.

Albano never states precisely what conduct is to be enjoined. He merely seeks injunctive relief "against allegedly unconstitutional conditions of confinement." Albano does not challenge his living conditions or the procedures which are used for all probation revocations. These might constitute a valid cause of action aside from what should be considered a petition for habeas corpus. Wolff, 418 U.S. at 554-55. He simply alleges that the procedure as to his probation revocation violates due process. Thus, the relief he seeks is to vacate the revocation and end his confinement. Therefore his motion for a preliminary injunction can only be considered as a petition for habeas corpus. Preiser, 411 U.S. at 499.

Treating the claim as a petition for habeas corpus, the question arises whether the district court should have addressed the petition and made a determination on the merits. Franklin v. State or Oregon State Welfare Division, 662 F.2d 1337, 1347-48, n. 13 (9th Cir. 1981). A federal court must dismiss a state prisoner's petition for writ of habeas corpus unless the petitioner has exhausted his state remedies. McQuown, 795 F.2d at 809. The petitioner has the burden of alleging that state remedies have been exhausted within the meaning of 28 U.S.C. § 2254(b) and (c). Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Exhaustion has occurred if each claim in the habeas petition has been previously presented to the highest court with jurisdiction to consider the claim. Picard v. Connor, 404 U.S. 270, 276 (1971). If state remedies are inadequate or unavailable the petitioner does not have to exhaust them. Reed v. Ross, 468 U.S. 1, 11 (1982).

Here, Albano contends that he made a direct appeal from the state court's denial of habeas relief but there is no evidence in the record of such an appeal and the record indicates the contrary. Albano also points out that the Nevada Supreme Court denied his petition. He fails to note, however, that this denial was without prejudice and thus Albano can still file a petition in the Nevada district court. Albano does not present any evidence to indicate that he has exhausted his state remedies or that they would be inadequate.

The decision of the district court to stay Albano's 42 U.S.C. § 1983 claim, instead of dismissing it, allows Albano to preserve his civil rights claims should he be successful on his petition for habeas corpus. Although the district court could have retained the damages claim under section 1983, Wolff, 418 U.S. at 554-55, this would have been impractical and a waste of judicial resources. The preclusive effect of an adverse determination of Albano's habeas corpus petition would dispose of justiciable claims as to the constitutionality of his confinement. The decision of the district court is sound.

AFFIRMED.