Roe

On April 16,1987, Real Party in Interest Glen Nickerson, Jr. was convicted of two counts of first degree murder and one count of attempted murder in California state court and was sentenced to life in prison without the possibility of parole. Following unsuccessful efforts to secure *1079 state post-conviction relief, Nickerson filed a petition for writ of habeas corpus in federal district court on December 28, 1998. 1 Nickerson’s first claim for relief in his habeas petition is a claim of actual innocence.

On June 1, 2001, prior to the close of discovery or the parties’ completion of briefing, the district court admitted Nick-erson to bail pending resolution of his ha-beas petition, subject to certain conditions of release, citing “the gravity of the allegations of the petition, the record developed thus far, petitioner’s failing health and the dilatory pace of these proceedings.” Nick-erson was released on bail on June 11, 2001. Warden Ernie Roe thereupon filed the present petition for writ of mandamus, seeking to vacate the district court’s bail order and to have Nickerson remanded to state custody.

I

We have observed that “[t]he remedy of mandamus is a drastic one, to be…