The opinion of the court was delivered by: PECKHAM
ROBERT F. PECKHAM, UNITED STATES DISTRICT JUDGE
Petitioner Russell Coleman was convicted of first degree murder and sentenced to death in 1981. His conviction and sentence were affirmed in their entirety by the Supreme Court of California in 1988. People v. Coleman, 46 Cal. 3d 749, 251 Cal. Rptr. 83, 759 P.2d 1260 (1988). That court then denied his petition for habeas corpus without comment in 1990.
Pursuant to 28 U.S.C. § 2254, Coleman filed a petition for a writ of habeas corpus in this court. On July 10, 1991, this court ordered the proceedings stayed for 120 days so that petitioner's counsel could conduct the investigation required by McCleskey v. Zant, 499 U.S. , 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). Such an investigation, which may result in the identification of new claims, raises the question of whether federal monies are available for the task.
On June 26, 1989, attorneys Cliff Gardner and Robert Derham were appointed to represent petitioner. On April 16, 1991, twenty-two months after counsel had been appointed and seven weeks after the Second Amended Petition had been filed, the United States Supreme Court issued its decision in McCleskey v. Zant, 499 U.S. , 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991).
McCleskey repudiated the Ninth Circuit's prevailing standard for abuse of the writ. Under the previous standard, abuse of the writ had been limited to the narrow circumstances of the deliberate abandonment of a claim, the pursuit of piecemeal litigation, or the use of subsequent petitions to vex, harass, or delay. See Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir. 1988), cert. denied, 110 S. Ct. 264, 107 L. Ed. 2d 214 (1989) (citing Sanders v. United States, 373 U.S. 1, 18-19, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963)). McCleskey rejected this reading of Sanders and declared that abuse of the writ could be based on the filing of a subsequent federal petition raising any new claims, unless petitioner demonstrated "cause" for failure to have raised the claim in the first federal petition and "prejudice" that would arise from failure to address the new claim. McCleskey, 113 L. Ed. 2d at 547. The adoption of the "cause-and-prejudice" standard imposed a new burden on counsel to ensure that all possible claims had been identified and exhausted.
In an Order filed July 11, 1991, in reference to the McCleskey decision, we remarked that this court could not "blithely impose a new requirement on petitioner's counsel without, simultaneously, granting counsel the opportunity to fulfill that obligation." Order at 3. The court therefore granted petitioner's motion for a stay of 120 days. The court did not decide, however, whether -- and to what extent -- federal monies under subsection 848(q)(4)(b) would be available to petitioner's counsel to conduct a McCleskey investigation.
That question is now before us.
The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7001(b), 102 Stat. 4181, 4393-94 (1989), amended Section 408 of the Controlled Substances Act, 21 U.S.C. § 848, to provide counsel and ancillary support to defendants seeking to challenge a sentence of death in post conviction proceedings under section 2254 or 2255 of Title 28. Subsection 848(q)(4)(B) of Title 21 now states that
in any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services.
Paragraph 9 of this subsection provides that
upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf ...