Arthur Calderon, Warden v. The United States District Court for the Northern District of California, Robert Henry Nicolaus, Real-Party-In-Interest

98 F.3d 1102 65 USLW 2294 , 96 Cal. Daily Op. Serv. 7752 , 96 Daily Journal D.A.R. 12 ,825 Arthur CALDERON, Warden, Petitioner, v. The UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, Robert Henry Nicolaus, Real-Party-In-Interest. No. 96-70032. United States Court of Appeals, Ninth Circuit. Argued and Submitted by Telephone May 24, 1996. Decided Oct. 22, 1996. Dane R. Gillette, Senior Assistant Attorney General, San Francisco, California, for petitioner. David L. Anderson, Anderson & Zimmer, Oakland, California, and Stephanie Ross, Point Roberts, Washington, for real-party-in-interest. Petition for Writ of Mandamus to the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-95-02335-MMC. Before: SCHROEDER, O'SCANNLAIN and KLEINFELD, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether a California death row inmate is entitled to discovery before filing a federal habeas petition. 2 * Arthur Calderon, Warden of the California State Prison at San Quentin, petitions this court for a writ of mandamus (1) to vacate the discovery order issued by the district…

We must decide whether a California death row inmate is entitled to discovery before filing a federal habeas petition.

I

Arthur Calderon, Warden of the California State Prison at San Quentin, petitions this court for a writ of mandamus (1) to vacate the discovery order issued by the district court upon the request of Real Party in Interest Robert Henry Nicolaus, and (2) to prohibit the issuance of any discovery orders until Nicolaus files a fully exhausted habeas corpus petition.

Nicolaus murdered his three children (ages two, five, and seven) in May 1964. He was convicted of three counts of first degree murder and sentenced to death, but the California Supreme Court reduced his convictions to second degree murder and the State released him on parole in August 1977.

In February 1985, Nicolaus killed his ex-wife, who identified him as her killer before her death. Nicolaus fled California, but the FBI arrested him in Pennsylvania in July 1985. A Santa Clara jury convicted Nicolaus of one count of first degree murder and returned a sentence of death in March 1987. The California Supreme Court affirmed the death sentence in October 1991 and denied his state habeas petition in…

concurring.

Nicolaus seeks discovery under Rule 6 of the rules governing section 2254 cases in the United States district courts. “By then-terms, the habeas rules only apply to ‘procedures in the United States district courts on applications under 28 U.S.C. § 2254 .’” McFarland v. Scott, 512 U.S. 849 , -, 114 S.Ct. 2568, 2575 , 129 L.Ed.2d 666 (O’Connor, J., concurring in the judgment in part and dissenting in part) (quoting Rule 1(a)) (emphasis in original). Because their terms make the rules operative only upon an application under § 2254, I concur in the majority’s holding prohibiting any discovery until Nicolaus has filed a federal habeas corpus petition. See Rule 2(a) (“the application shall be in the form of a petition for a writ of habeas corpus”).

I write separately to address a concern similar to that raised by the Supreme Court in McFarland . The Court there considered 21 U.S.C. § 848 (q)(4)(B), which authorizes appointment of counsel for indigent capital prisoners in “any post conviction proceeding” under §§ 2254 or 2255. The Court held that the provision permits the appointment of counsel prior to the filing of a habeas petition. The Court emphasized a habeas…