Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1991)

MEMORANDUM^** 

Rodney Lee Creswell, a former Nevada state prisoner, appeals pro se the district court's dismissal, without prejudice, of his 42 U.S.C. § 1983 complaint, construed as a 28 U.S.C. § 2254 petition for habeas corpus relief, for failure to exhaust state remedies.¹  We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the denial of a petition for writ of habeas corpus, Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989), and affirm.

A state prisoner's challenge to the fact or duration of his confinement may be raised only on habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14 (1973); see also Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). Where he files a section 1983 complaint that seeks relief available only under habeas corpus, the district court should construe the complaint to that extent as a habeas corpus petition. Franklin v. Oregon, 662 F.2d 1337, 1347 & n. 13 (9th Cir. 1981).

Before a state prisoner may seek habeas corpus relief in federal court, he must first give the state's highest court "fair opportunity" to consider each of his claims. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). The burden is on the petitioner to show exhaustion, and dismissal of the petition is proper where the record does not show that the exhaustion requirement has been met. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam), cert. denied, 455 U.S. 1023 (1982).

After Creswell was free on bail pending sentencing on other charges, he was required to submit to a urinalysis test. As a result, Creswell was apparently charged and convicted of violating section 453.411 of the Nevada Revised Statutes. Section 453.411 makes it unlawful for anyone to be under the influence of controlled substances except in accordance with a doctor's prescription. Creswell filed this action in district court as a section 1983 action, seeking only to have section 453.411 declared unconstitutional. Declaring the statute unconstitutional, however, would require overturning Creswell's conviction under that statute thereby reducing the duration of his confinement. Thus, the district court correctly construed Creswell's action as a habeas corpus petition. See Preiser, 411 U.S. at 499 n. 14. Further, because Creswell does not allege that he has presented his claim to the highest state court, the district court did not err in dismissing the petition without prejudice for failure to exhaust state remedies. See Cartwright, 650 F.2d at 1104.

AFFIRMED.