467 F. 2d 1380 - United States Nunes v. S Nelson

While a state prisoner, following convictions for robbery, burglary and grand theft, appellant took a direct appeal which is now pending in the appellate courts of California. In April 1970, he filed with the district court a habeas corpus petition, in which he sought an order entitling him to inspect certain items of evidence in the possession of local officials for use in preparing a future petition for a writ of habeas corpus, and also an order prohibiting prison authorities from pursuing a variety of practices said to deny him reasonable access to the courts.

The district court denied the petition for habeas corpus and granted a certificate of probable cause, limiting this appeal to two issues: 1) petitioner's right to discovery, and 2) the availability of federal habeas corpus to review the conditions of imprisonment. After this appeal was taken, appellant was released from custody and has been on parole since November 1971.

We affirm the denial of the writ. Appellant is not entitled to a discovery order to aid in the preparation of some future habeas corpus petition. We agree with the district judge that:

"What Nunes apparently wants is a license to enable him to search through a wide variety of items in order either to discover whether he has grounds for a collateral attack or to facilitate preparing a petition for collateral relief. Unfettered discovery here would be neither 'appropriate' nor 'suitable,' and Nunes therefore has no right to the requested fishing license. Harris v. Nelson, 394 U.S. 286 [, 89 S.Ct. 1082, 22 L.Ed.2d 281] (1969)."

On the issue of alleged illegal conditions of imprisonment, appellant is not in custody nor subject to any pending parole revocation proceedings, and he therefore presents no justiciable claim for relief. We affirm the order of the district court denying the petition.