Arthur Calderon, Warden, v. United States District Court for the Eastern District Ofcalifornia (sacramento), Respondent,larry Roberts, Real Party in Interest, 113 F.3d 149 (9th Cir. 1997)

ORDER

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

ORDER

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.

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).

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.