In these consolidated petitions for writs of mandamus1 we are asked to use that extraordinary remedy to require that a district judge, rather than a magistrate, personally conduct evidentiary hearings in the habeas corpus proceedings of two state prisoners. We decline to issue the writs.

* In April 1976, Pinell and Slocum, prisoners in the custody of the State of California, separately petitioned the district court for writs of habeas corpus. Pursuant to District Court General Order 104-D, the petitions were referred to a magistrate. After further pleadings, the magistrate ordered that evidentiary hearings be held before him in March 1977. The respondent prison wardens (hereinafter referred to jointly as the state) moved unsuccessfully in the district court to vacate the magistrate's orders. Thereafter the state filed these petitions for writs of mandamus, asking us to compel the district court to vacate its orders denying the state's motions and to enter new orders prohibiting the magistrate from conducting the evidentiary hearings. The state also requested that we directly compel the magistrate to vacate his order requiring the evidentiary hearings. Finally, the state moved this court to stay the proceedings before the district court and the magistrate.

By the time we considered the motions to stay, the hearings in the two cases had already been held, although it did not appear from the record that the magistrate had submitted his recommendations to the district judge. We stayed further proceedings pending our disposition of these petitions.2

The state contends that it is contrary to both federal statutes and the Constitution for a magistrate instead of an "Article III judge" to order and conduct evidentiary hearings in habeas corpus proceedings under 28 U.S.C. § 2254. Although 28 U.S.C. § 636(b)3 and Rule 8(b)4 of the Rules Governing Section 2254 Cases in the United States District Court as amended on October 21, 1976, by Pub.L. No. 94-577, 90 Stat. 2729, expressly provide for such hearings, the state contends that these amendments affect only habeas corpus petitions filed after February 1, 1977, thus excluding the petitions in this case.5 The state also argues that even if the magistrate was authorized by statute to conduct the evidentiary hearings, the general order which automatically referred the habeas proceedings to him was illegal because it denied the state an individual determination by the judge that the evidentiary hearings were required. This, says the state, violates Rule 8(a) of the Rules Governing Section 2254 cases in the United States District Courts.6

Finally, the state argues that, apart from any statutory authorization, the Constitution itself prohibits the magistrate from conducting the hearings. It is urged that due process restricts this particular exercise of judicial power to judges appointed under Article III of the Constitution, which provides for life tenure during good behavior and bars reductions in compensation. The state suggests that considerations of comity and the balance of our federal system require that state court criminal adjudications not be set aside except upon the personal decision of an Article III judge who himself has heard the witnesses and evaluated their credibility. The provisions in section 636(b) for de novo review by the judge based upon the record of the magistrate's hearing7 are said to be inadequate.

We acknowledge that the state raises questions of importance to the administration of justice in this country. But we deal here with petitions for extraordinary relief, not ordinary appeals. We are therefore concerned not only with the substantive legal issues, but with the broader question of whether these cases are proper ones for the exercise of our mandamus power.

We recently had occasion to explore in detail the criteria that guide our power to issue the extraordinary writs. Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). We need not repeat the Bauman analysis by which we derived five general factors governing the issuance of writs of mandamus; our task here is to apply the principles of Bauman to the cases presently before us.

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. . . . (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. . . . (3) The district court's order is clearly erroneous as a matter of law. . . . (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. . . . (5) the district court's order raises new and important problems, or issues of law of first impression.

Id. at 654-55. We also said in Bauman that

rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable. The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators.

Id. at 655.

We believe the first two factors cut against the state here. No showing has been made that an ordinary appeal after final disposition of these cases in the district court is inadequate8 or in any particular way harmful to the state's interests. The worst that could befall the state is that it might be required to participate in a second hearing conducted by the district judge himself if, on appeal, it is decided that the magistrate was indeed acting beyond his authority. This may pose some inconvenience, but it certainly does not render the appellate process inadequate or constitute irremediable harm. Moreover, it may well be that the habeas corpus petitions will ultimately be denied under the procedures to which the state now so strenuously objects. Should that occur, it would be difficult to find any substantial harm or even inconvenience to the state at all.

Nor is the state helped by the third factor, for we are unable to conclude that the magistrate's and the district court's orders are clearly erroneous as a matter of law. Indeed, our review of the merits reveals weighty arguments in favor of the district court's position.9 Since we are here concerned with the broader question of the propriety of mandamus, we need not and do not decide that the state's position on the merits is incorrect and cannot ultimately prevail. We need only decide as we do that the district court's position on the merits is not "clearly erroneous as a matter of law."10

The fourth guideline of Bauman, whether the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules, is here superficially difficult to apply. Certainly, as the state points out, since the reference of habeas corpus petitions to the magistrate is accomplished by a general order of the district court, this situation is bound to recur. Yet, mere recurrence of a procedure in the district court is not in and of itself objectionable; it is the repetition of error and the disregard of rules with which we are concerned. Since, as we have stated before, it is far from clear that the district court has acted incorrectly at all, neither can it be said that its conduct is an "oft-repeated error." As we pointed out in Bauman, this factor generally applies when a district court has been previously warned that its decision is incorrect. Id. at 660. "Since neither we nor the Supreme Court has yet held that an order of the type being reviewed here is erroneous," id. at 661, the fourth guideline from Bauman is, at best, of questionable applicability.

The fifth factor does favor the state's position. Whether the Constitution or the statutes and rules in question permit a magistrate to conduct evidentiary hearings in habeas corpus cases is, as we observed earlier, of great importance to the administration of criminal justice in the federal courts. This is a procedure that is certain to be employed by district courts throughout the nation, and the legality and proper construction of amended section 636(b) and Rule 8(b) apparently involve questions of first impression in our circuit. But this factor, standing alone, would be insufficient to justify a writ of mandamus.

"(I)t is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed." Kerr v. United States District Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 2124, 48 L. Ed. 2d 725 (1976). Moreover, it was incumbent upon the state to show that its right to issuance of the writ is "clear and indisputable." Id. at 403, 96 S. Ct. 2119. As we weigh the factors, the state here falls far short of that burden. We believe these cases should proceed through the normal appellate process.

The petitions for writs of mandamus are denied, and the stay of proceedings previously imposed by this court is, in each case, dissolved.