Calderon v. U.S. Dist. Court for the Northern Dist. of California

Decision Date22 October 1996
Docket NumberNo. 96-70032,96-70032
Citation98 F.3d 1102
Parties, 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.
CourtU.S. Court of Appeals — Ninth Circuit

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.


O'SCANNLAIN, Circuit Judge:

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


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 November 1991. The U.S. Supreme Court denied certiorari in June 1992. Nicolaus v. California, 505 U.S. 1224, 112 S.Ct. 3040, 120 L.Ed.2d 908 (1992).

In September 1992, the district court granted Nicolaus' motion for a stay of execution, and in April 1993 the court appointed counsel for Nicolaus' federal habeas appeal. To date, Nicolaus has not filed a petition.

In October 1995, counsel for Nicolaus filed a discovery motion to serve subpoenas on the Sacramento District Attorney's Office and the Sacramento Police Department, seeking access to all documents pertaining to Nicolaus' case. 1 Nicolaus maintains that the FBI has not given him all the documents relevant to his case, and he hopes to find some of these FBI documents in the files of the Sacramento authorities.

On December 8, 1995, without holding a hearing and without presenting any explanation of "good cause," the district court granted Nicolaus' motion to serve the subpoenas. The district court denied Calderon's request for a stay of the discovery order pending application to this court for a writ of mandamus. Calderon filed a timely petition with an emergency motion for a stay of the discovery order. We granted the stay on April 5, 1996.


Rule 6(a) of the Federal Rules Governing Section 2254 Cases allows parties to engage in discovery in the discretion of the court and "for good cause shown." The rule provides that a "party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." See Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.1993) (citation omitted) ("there simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter").

Rule 6(a) is silent as to whether a district court may order discovery before a petition has been filed. The Advisory Committee Note states:

This rule contains very little specificity as to what types and methods of discovery should be made available to the parties in a habeas proceeding, or how, once made available, these discovery procedures should be administered. The purpose of this rule is to get some experience in how discovery would work in actual practice by letting district court judges fashion their own rules in the context of individual cases.


On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act"), Pub.L. No. 104-132, 110 Stat. 1217. As a threshold matter, we must consider what impact, if any, the Act may have on Calderon's mandamus petition.

Title I of the Act, which amends Chapter 153 of Title 28 of the United States Code, applies to all federal habeas challenges to state criminal judgments. See Felker v. Turpin, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (upholding Title I of the Act as constitutional). Since the Act is silent as to the date of effectiveness that attaches to these provisions, courts reviewing Chapter 153 must determine whether the provision at issue is substantive (presumption against retroactivity applies) or procedural (presumption in favor of retroactivity applies). See Chenault v. U.S. Postal Service, 37 F.3d 535, 538 (9th Cir.1994) (interpreting Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). However, we need not decide whether Chapter 153 applies to this petition for mandamus because the Chapter's provisions do not deal with pre-petition discovery. The provisions mainly address how courts should treat allegations once they have already been outlined in a petition.

The Act adds Chapter 154 to Title 28 of the United States Code. This new Chapter contains additional provisions applicable to habeas review of state death penalty judgments in states that comply with certain conditions. Although Chapter 154 applies to cases pending on or after the date of enactment, the United States District Court for the Northern District of California has enjoined Calderon from asserting that California is entitled to the benefits of the provisions of Chapter 154 "in any state or federal proceeding involving any prisoner under sentence of death by the State of California." Ashmus v. Calderon, 935 F.Supp. 1048 (N.D. Cal. 1996) (Henderson, C.J.), calendared for appeal, No. 96-16141 (9th Cir. Sept. 18, 1996); see Calderon v. Ashmus, No. 96-16141 (9th Cir. June 20, 1996) (denying emergency motion for stay of injunctive relief). In any case, nothing in Chapter 154 deals directly with discovery, let alone pre-petition discovery under Rule 6. Accordingly, we need not consider the applicability of the Act.


We now consider the merits of Calderon's petition. In determining whether to issue a writ of mandamus, we balance the following five factors ("the Bauman factors"):

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he desires;

(2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal;

(3) whether the district court's order is clearly erroneous as a matter of law;

(4) whether the district court's order is an oft repeated error or manifests persistent disregard for the federal rules; and

(5) whether the district court's order raises new and important problems or issues of law of first impression.

In re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.1982) (citing Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977)), aff'd sub nom. Arizona v. U.S. Dist. Ct., 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983); see 28 U.S.C. § 1651. Although all five factors need not be satisfied, "it is clear that the third factor, the existence of clear error as a matter of law, is dispositive." Executive Software North Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545, 1551 (9th Cir.1994) (citations omitted). 2 See generally In re Cement 688 F.2d at 1301 ("all of the guidelines are unlikely to be met in any one case" and "the guidelines serve only as a useful starting point").

Since the third Bauman factor can be dispositive, we begin by considering whether the district court clearly erred as a matter of law.

We conclude that pre-petition discovery is impermissible for at least four reasons. First, a prisoner must outline factual allegations in a petition before the district court will be able to determine the propriety of discovery. As the Supreme Court stated in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), which established the basis for Rule 6: "[I]n appropriate circumstances, a district court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery procedures...." Id. at 290, 89 S.Ct. at 1086 (emphasis added); see also Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.) (citation omitted) ("Unless the petition itself passes scrutiny, there would be no basis to require the state to respond to discovery requests."), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987).

Second, any right to federal discovery presupposes the presentation of an unexhausted federal claim, because a federal habeas petitioner is required to exhaust available state remedies as to each of the grounds raised in the petition. See Duncan v. Henry, 513 U.S. 364, ----, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 1719-20, 118 L.Ed.2d 318 (1992) ("[t]he state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings"). Here, it is...

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