dissenting:
The controlling legal standards utilized by this panel in affirming the district court’s denial of Timothy Baldwin’s petition for habeas corpus relief presently lie in legal limbo, the Supreme Court having granted certiorari in the two controlling cases that governed this panel’s decision. See Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982) (en banc), cert, granted, — U.S. —103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983) and Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982) (per curiam), cert, granted, - U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983). That the Supreme Court may in the very near future alter the standards applied in determining whether Baldwin’s trial met with the ra*156quirements of basic constitutional law seems inarguable.
What this Court has before it for consideration should be clearly understood: it is a request for a stay of the issuance of this Court’s mandate pending only the filing and disposition of his petition for a writ of certiorari to the Supreme Court. The temporary nature of the requested stay is self-evident. This being true, I simply cannot sanction Timothy Baldwin’s execution knowing that the Supreme Court may, in the very near future, alter or reject the constitutional standards applied in denying Baldwin’s petition. This Court should not permit the ultimate punishment to be exacted when live, fundamental constitutional issues remain unresolved in a defendant’s appeal. Accordingly, I respectfully dissent from my colleagues’ denial of Timothy Baldwin’s request for a stay of our mandate pending filing and disposition of his petition for a writ of certiorari in the Supreme Court.
Barefoot v. Estelle, - U.S. -, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) teaches that when a petitioner under imminent threat of execution has made a substantial showing of a denial of a federal right, he must be afforded an adequate opportunity to present the merits of his argument, and he must receive a considered decision on the merits of his claim. Id. at-, 103 S.Ct. at 3394. A denial of a stay of execution to a petitioner presenting a “question of some substance,” ibid, at note 4, is “tolerable,” ibid., if and only if expedited procedures provide adequate time and means for rendition of a considered judgment on the merits prior to the scheduled execution date. Ibid.
Baldwin’s request is, of course, in a different posture than was Barefoot’s: Baldwin has received the plenary review of his appeal of right to this Court that was at stake in Barefoot, and now requests a stay in order to seek the discretionary review of the Supreme Court. But the constitutional imperative — that the State cannot take a life in the name of justice until justice has been given to the one condemned — does not melt away as the procedural posture of the petition changes. Orderly consideration of the substantial constitutional questions remaining after plenary appellate review is, like a thorough and considered decision in the Court of Appeals itself, requisite to the administration of justice under law.
Baldwin’s petition for a stay is premised on the Supreme Court’s grants of certiorari in Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982) (Unit B) (en banc), cert. granted,-U.S.-, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983) and Pulley v. Harris, 692 F.2d 1189 (9th Cir.1982), cert, granted, - U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983). The en banc decision in Washington announced our standards for finding ineffective assistance of counsel and for determining whether prejudice accruing on ineffective assistance warrants habeas corpus relief. Our refusal to accept Baldwin’s two claims of ineffective assistance of counsel turned in each instance on our decision that he had failed to show the “actual, substantial prejudice” demanded by Washington to establish a constitutional defect in the adequacy of representation.1 The propriety of that test is squarely presented by the petition for certiorari.2
*157Pulley involves questions of the constitutional necessity of a “proportionality review” of death sentences by a court of state-wide jurisdiction, and the requisites of such a review.3 In his petition for habeas corpus, Baldwin presented a similar question, i.e., that the Louisiana Supreme Court’s practice of conducting its proportionality reviews of sentences meted out in capital murder cases on a district-by-district basis fails to satisfy the eighth and fourteenth amendments to the United States Constitution. He conceded on appeal that our consideration of that claim was foreclosed by our earlier rejection en banc of the identical claim in Williams v. Maggio, 679 F.2d 381, 394-95 (5th Cir.) (en banc), cert, denied,-U.S.-, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). Baldwin v. Maggio, 704 F.2d at 1326 n. 1.
I think that the presence of these issues— particularly the propriety of Washington’s standards for evaluating claims of ineffective assistance of counsel — before the Supreme Court requires that we stay our mandate pending filing and disposition of a petition for certiorari, see ante note 1. Though the Supreme Court may not, in the course of its decisions of Washington and Pulley, reach the issues implicated in Baldwin’s case, I think that its grant of review of those petitions requires a present conclusion that all of the issues the petitions raise are “cert-worthy.” The questions of law presented by those cases are not so clearly settled that I can, with confidence, predict that the Court’s decision will endorse our own. Acceleration of an admittedly deliberate appellate process should not come at the expense of the defendant’s life, when fundamental constitutional issues remain unresolved in his case. As Judge Goldberg noted so poignantly concurring in Bass v. Estelle, 696 F.2d 1154, 1161 (5th Cir.1983), “There can be no writs of habeas corpus from a casket.”
. Washington v. Strickland’s standards were central to our decision. Indeed, we delayed our decision of Baldwin’s appeal pending decision of that case and solicited supplemental briefs from the parties on its significance to the issues under review.
. The petition for certiorari has been summarized as follows:
Ruling below:
Habeas petitioner claiming ineffective assistance of counsel must show that counsel’s reasonable, strategic choice to pursue only one of several plausible defenses worked to his actual and substantial prejudice before relief will be granted; ultimate burden, however, remains on state to show that any constitutional error that did occur was harmless beyond reasonable doubt; remand is in order in this case, both to allow district court to make findings about trial counsel’s alleged failure to investigate and also because of district court’s improper consideration of Florida trial judge’s testimony.
Questions presented: (1) Has court of appeals, in expressly overruling Florida Supreme Court and expressly rejecting en banc opinion of another federal court of appeals, *157U.S. v. DeCoster, 624 F.2d 196 (C.A.D.C. 1976), applied correct standard for review of claims of ineffective assistance of counsel? (2) Did court of appeals misapply Fayer-weather v. Ritch, 195 U.S. 276 [25 S.Ct. 58, 49 L.Ed. 193] (1904), to exclude testimony of state trial judge, testifying as expert and as presiding judge, that new evidence offered by habeas petitioner would make no difference upon imposition of sentence? (3) Did court of appeals correctly reverse denial of habeas petitioner’s habeas application while failing to consider or apply presumptive validity and factual findings of four state courts and federal district court? (4) Did habeas petitioner abuse habeas writ?
Strickland v. Washington, 51 U.S.L.W. 3831 (U.S. May 17, 1983) (No. 82-1554).
. The petition for certiorari has been summarized as follows:
Ruling below:
As interpreted in Gregg v. Georgia, 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976), and Proffitt v. Florida, 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913] (1976), Constitution requires as prerequisite for imposition of death penalty that court conduct “proportionality review” for purpose of comparing defendant’s sentence to other sentences imposed for similar crimes.
Questions presented: (1) Does Constitution, in addition to procedures whereby trial court and jury impose death sentence, require any specific form of “proportionality review” by court of statewide jurisdiction prior to execution of state death judgment? (2) If so, what is constitutionally required focus, scope, and procedural structure of such review?
Pulley v. Harris, 51 U.S.L.W. 3590 (U.S. Feb. 15, 1983) (No. 82-1095).