McDaniel

Per Curiam Opinion; Concurrence by Judge RYMER.

The Nevada prison authorities and the Nevada Attorney General (collectively, “the State”) seek a writ of mandamus vacating, and an emergency stay against the district court’s discovery order in a death row prisoner’s habeas corpus ease. We deny the emergency stay motion and dismiss the mandamus petition. We issue this brief opinion because this action appears to be the latest in a series of meritless mandamus petitions filed by the State of Nevada seeking to prevent discovery in habeas cases.

I

Daniel Steven Jones pled guilty to and was convicted of murder in Nevada. A three-judge panel of the state court sentenced him to death. The Nevada Supreme Court upheld his conviction and sentence and dismissed his subsequent motion for review. After his appointed counsel failed to notify him of the Nevada Supreme Court’s decision, or to provide him with a copy of that decision, Jones wrote to the district court requesting assistance in pursuing further appeals. The district court treated this letter as initiating a habeas action and appointed counsel for Jones. Jones, through counsel, then filed a first habeas petition alleging four…

concurring in the judgment:

While I agree that the state’s emergency motion to stay the district court’s scheduling orders should be denied, and that the petition for writ of mandamus should be dismissed, I would do so for different reasons.

Each was filed June 17, 1997; we should have dismissed both as premature because the district court had not been asked to stay its orders. In the meantime, the state did file a motion to stay in the district court, which the district court denied. Presumably a renewed motion to stay in this court would be ripe. So treating it, the motion still fails because there plainly is no “emergency.” The district court’s first scheduling order (contemplating discovery) was entered November 19, 1996, and its second scheduling order (“constitut[ing] leave of court to conduct discovery” and setting cut-off) was entered January 16, 1997, following a status conference at which the subject of discovery and the time for conducting it was discussed. No objection was made to either order until less than a month before the cut-off date, when the state sought a stay. Even then, as the district court pointed out, the record did not reflect any live dispute between…