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113 F3d 149 Calderon v. United States District Court for the Eastern District of California

113 F.3d 149

97 Cal. Daily Op. Serv. 3300

Arthur CALDERON, Warden,
v.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA (SACRAMENTO), Respondent,
Larry Roberts, Real Party in Interest.

No. 95-70807.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 26, 1997.
Decided April 14, 1997.
Ordered Published May 5, 1997.

Charles R.B. Kirk, Deputy Attorney General, State of California, San Francisco, California, for petitioner.

Claudia Jane Robinson, Sacramento, California, for Real Party in Interest.

Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. No. CV-S-93-00254-EJG.

Before: WALLACE, FLETCHER and KOZINSKI, Circuit Judges.

ORDER

1

The order filed April 14, 1997 was not published. It should have been and it is now ordered published.

ORDER

2

Arthur Calderon, Warden of the California State Prison at San Quentin, petitions for a writ of mandamus directed to the district court ordering it to vacate its grant of the discovery motions of Larry Roberts, the real party in interest. We have jurisdiction under 28 U.S.C. § 1651.

3

In light of the concession by petitioner that his federal habeas petition contains unexhausted claims that must be dismissed or pursued in state court before they may be included in the federal habeas petition, discovery at this time is inappropriate. See Rose v. Lundy, 455 U.S. 509, 513-520, 102 S.Ct. 1198, 1200-1204, 71 L.Ed.2d 379 (1982); Calderon v. United States Dist. Ct., 107 F.3d 756 (9th Cir.1997) (Gordon); Calderon v. United States Dist. Ct., 98 F.3d 1102 (9th Cir.1996) (Nicolaus).

4

We GRANT the petition for writ of mandamus and remand to the district court with instructions to vacate its discovery order unless the real party in interest elects to amend his petition to include only exhausted claims or dismiss without prejudice his current petition for federal habeas corpus relief and file a new petition containing only exhausted claims.