Calderon

Arthur Calderon, Warden of the San Quentin State Prison, (“State”) seeks a writ of mandamus in response to the district court’s order (1) allowing petitioner to amend his petition to delete unexhausted claims and holding the petition in abeyance subject to further amendment -reincorporating the deleted claims once they are litigated in state court, and (2) its order granting leave to depose a witness in relation to an unexhausted claim.

I.

The real party in interest in this case, Ralph International Thomas, is a California prisoner sentenced to death. On April 15, 1996, Thomas finalized his petition for Writ of Habeas Corpus to the District Court for the Northern District of California, raising exhausted and unexhausted claims. In an order filed on May 7, 1997, the district court *620 permitted Thomas to delete his unexhausted claims and stated that it would hold in abeyance his amended petition containing only exhausted claims while Thomas exhausted his unexhausted claims in' state court. The court also directed Thomas to file a second amended petition incorporating the newly exhausted claims after litigating them in state court.

On May 29, 1997, subsequent to the district…