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

> Court of Appeals for the Ninth Circuit · October 22, 1996 · 98 F.3d 1102

URL: https://www.frixlaw.com/law-library/cases/9489697

## Case

- **Full name:** Arthur CALDERON, Warden, Petitioner, v. the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, Robert Henry Nicolaus, Real-Party-In-Interest
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 22, 1996
- **Citations:** 98 F.3d 1102; 96 Daily Journal DAR 12825; 96 D.A.R. 12; 96 Cal. Daily Op. Serv. 7752; 1996 U.S. App. LEXIS 27453
- **Precedential status:** Published
- **Opinion:** Concurrence by Schroeder
- **Judges:** Schroeder, O'Scannlain, Kleinfeld
- **Cited by:** 161 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489697

## How later opinions describe it (automated extraction)

- recognizing that Rule 27 provides under certain circumstances for pre-petition discovery, but pointing out that the petitioner did not contend that his discovery request satisfied the requirements of Rule 27
- holding that district court clearly erred in granting discovery request before inmate had filed a petition under 28 U.S.C. § 2254
- stating that with the exception of Rule 27, “the Federal Rules of Civil Procedure do not permit pre-complaint discovery”
- noting, inter alia, that a petitioner must outline 16 factual allegations stating a prima facie case for relief on an exhausted claim before the 17 court can assess whether discovery is appropriate

## Opinion text

SCHROEDER, Circuit Judge,
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”).
The petition ... shall specify all the grounds for relief ... and shall set forth in summary form the facts supporting each of the grounds thus specified.
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 petitioner’s need for the assistance of counsel in avoiding the pitfalls of heightened pleading requirements, the doctrines of procedural default and waiver, summary dismissal, and, after McCleskey v. Zant, 499 U.S. 467 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991), abuse of the writ doctrine. Given these traps for the unwary, the Court found that providing counsel prior to the filing of a petition was the only way to make the provision of counsel meaningful. The Court feared that “[r]e-quiring an indigent capital petitioner to proceed without counsel in order to obtain counsel ... would expose him to the substantial risk that his habeas claims never would be heard on the merits.” McFarland , 512 U.S. at -, 114 S.Ct. at 2572 ; see also id. at -, 114 S.Ct. at 2574 (O’Connor, J., concurring in the judgment in part) (expressing same concerns).
A petitioner such as Nicolaus, seeking pre-petition discovery of evidence supporting a Brady claim, faces a similar problem. As the McFarland Court pointed out, habeas proceedings employ a standard of fact pleading, see Rule 2(c), 1 and habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal. Rule 4; see McFarland, 512 U.S. at -, 114 S.Ct. at 2572 ; id. at -, 114 S.Ct. at 2574 (O’Con- *1109 nor, J.). Thus it might appear that Nicolaus faces a conundrum: without filing a petition, he cannot get discovery of sufficient facts to satisfy Rule 2(c)’s standard of fact pleading, but upon filing a petition in order to get discovery, his petition, if it states insufficient facts, is subject to summary dismissal before discovery would be ordered. Rule 4. Nico-laus might reasonably fear that unless he is permitted pre-petition discovery, he may never get either discovery or a hearing of his claim on the merits.
The apparent conundrum, however, disappears upon closer examination of the fact pleading requirement of Rule 2(c) and the standard for summary dismissal under Rule 4. Rule 2(c) does not require that a petitioner state facts showing he is entitled to relief; rather, he is required only to “set forth in summary form the facts supporting each of the grounds” of his petition. The advisory committee notes to Rule 4 amplify the meaning of this requirement: “[T]he petition is expected to state facts that point to a ‘real possibility of constitutional error.’ ” Rule 4 advisory committee notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.1970)) (emphasis added); cf. FRAP 21(a)(2)(B)(iii) (Proposed Amendments April 23,1996) (requiring writ petitions to state “the facts necessary to understand the issues presented by the petition”). Thus the facts in a habeas petition need not be so detailed as to establish prima facie entitlement to habeas relief; they are sufficient if they suggest the real possibility that constitutional error has been committed. See Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir.1979).
Moreover, a habeas court reviewing a petition under Rule 4 reviews only to see if it plainly appears that petitioner is not entitled to relief. Simply put, Rule 4 is intended to screen out plainly frivolous appeals. See Rule 4 advisory committee notes (“it is the duty of the court to screen out frivolous applications”); see also Blackledge v. Allison, 431 U.S. 63, 76 , 97 S.Ct. 1621, 1630 , 52 L.Ed.2d 136 (1977) (“The critical question is whether these allegations, when viewed against the record ..., were so ‘palpably incredible,’ so ‘patently frivolous or false,’ as to warrant summary dismissal”) (emphasis added). The rule does not require habeas courts to dismiss a petition simply because all the facts showing entitlement to relief have not yet been fully developed. Of course Nicolaus must first exhaust his claim, along with available avenues of discovery, in state court. This it appears he has not done.
Thus a petitioner who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review, and be permitted to obtain discovery under Rule 6 (provided that he meets that Rule’s good-cause requirement). In this case, for instance, Nicolaus has credibly alleged the existence of information, i.e., his unredacted FBI files, which may be material to his defense and which was withheld from counsel. These facts, if pled in a properly exhausted habeas petition, would at least eolorably state a Brady claim; such a petition should not be subject to summary dismissal under Rule 4. Once Nicolaus has filed a federal habeas petition alleging these facts, he should be able to obtain Rule 6 discovery upon a showing of good cause, which the district court in this ease was satisfied he had made.
Until Nicolaus has filed a federal habeas petition on an exhausted claim, he cannot avail himself of Rule 6 discovery. Once filed, however, his petition should not be subject to dismissal until after the court has dealt with the discovery request.
. Rule 2(c) provides in pertinent part:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489697. Public record. Not legal advice.