specially concurring.
I concur in the result, and in much of what Judge Murnaghan has written in the lead opinion for the court. I write only to emphasize my understanding of the narrowness of the issue before us and my concern that we should not express any opinion on the merits of the jury-selection issue beyond that absolutely required to dispose of the dispositive issue before us.*
I.
The limited issue before us is revealed by considering the procedural path by which the case has now reached us. The Supreme Court’s decision vacating the stay that I entered as a single circuit judge upheld the district court’s determination that a petition raising the identical grounds raised in the petition whose dismissal is now sought to be appealed constituted writ abuse. See Woodard v. Hutchins, — U.S. —, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). The Supreme Court’s majority opinion noted that although there was no “affirmative evidence” that Hutchins’s constitutional claims were “deliberately withheld,” “no explanation (was) made as to why they were not raised until the very eve of the execution date.” See id. at— & n. 3, 104 S.Ct. at 753 & n. 3. Arguably, therefore, confronted with a record containing such “affirmative evidence,” the Court might have reached a contrary result. While this may be debatable, I assume, as did the district court, that this limited opening for further pursuit of the writ survived the Court’s vacation of the earlier stay.
In any event, by virtue of N.C.Gen.Stat. Section 15-194, and the action of the North Carolina Supreme Court implementing that statute, petitioner’s execution was again stayed, thereby affording him an opportunity upon refiling his petition (whether a “new” or the “same” one is of no consequence) to supply the affirmative evidence that was absent from the previous record, namely evidence that he did not deliberately withhold the constitutional claims raised in his second petition. Counsel for petitioner then filed with the renewed petition an affidavit from petitioner’s former counsel in an effort to discharge petitioner’s burden of demonstrating that the claims he *962presented in the successive petition had not been deliberately withheld. See Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948) (once issue of writ abuse raised, petitioner has the burden of proving by a preponderance of the evidence that he has not abused the writ); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983) (en banc).
The district judge, on resubmission of the petition, considered the expanded record, found that the claims presented had been deliberately withheld and, based on the latter determination, concluded “that the filing of the present petition in this Court ... constitutes an abuse of the writ.” Hutchins v. Woodard, SH-C-84-26 (W.D.N.C. Feb. 17, 1984) (slip op. at 8-9). After dismissing the writ, the district court concluded that the likelihood of this court’s reversal of its decision was not sufficient to justify the issuance of a certificate of probable cause and denied it.
The first question on this appeal is therefore whether the district court erred in its determination that the refiling of the petition constituted an abuse of the writ. Our standard for review of that determination is well-established:
The principles governing ... justifications for denial of a hearing on a successive application (of a habeas petition) are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.
Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). See also Stephens v. Kemp, — U.S.—, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983) (Powell, J., dissenting from granting of stay of execution); Jones v. Estelle, 722 F.2d at 165. Thus, the threshold question, the substantiality of which we must consider in determining whether to issue a certificate of probable cause, is narrowly whether the district court abused its discretion in finding writ abuse under the circumstances revealed. See Stephens v. Kemp, — U.S. at—, 104 S.Ct. at 563 (Powell, J., dissenting).
In order to decide whether the requisite substantiality exists to justify the issuance of a certificate of probable cause, see generally Barefoot v. Estelle, — U.S. —, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983), we must of course give “weighty consideration” to the fact that a district judge has denied a prior application, see Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198, 18 L.Ed.2d 282 (1967), though we may take into account in making that determination that this is a capital case. See Barefoot, 103 S.Ct. at 3394 (“nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause”).
With this standard in mind, it cannot be said that petitioner has made a “substantial showing,” see id., that the trial court abused its discretion when it determined that the successive habeas petition constituted writ abuse because of petitioner’s failure to justify the earlier withholding of the grounds now belatedly sought to be raised. Judge Murnaghan’s opinion sufficiently documents the basis upon which that determination by the district court is unassailable under our standard of review.
II.
That technical writ abuse has been properly determined by the district court does not end the matter, however. Habeas corpus proceedings are ultimately governed by equitable principles. See Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. A determination that a particular successive petition constitutes writ abuse is an equitable one and, as the state concedes here, the “ends of justice” may yet require that, notwithstanding technical abuse, a constitutional claim be heard on its merits if sufficiently compelling circumstances appear. See id. at 18, 83 S.Ct. at 1078 (if the “ends of justice demand,” a district judge has the power and the duty to reach the merits of the claims raised in an otherwise abusive petition).
The most difficult aspect of this case relates to this possibility. Urged as a sufficiently compelling circumstance to justify *963disregard of technical writ abuse here is the possibility that there may now be emerging a heretofore unrecognized constitutional principle, which might, if established, invalidate Hutchins’s conviction, namely, that the practice of excluding from the guilt-phase proceedings jurors who are unalterably opposed to capital punishment is fundamentally unfair to a defendant charged with a capital crime. Stated simply and starkly, the question is whether equity requires a stay of Hutchins’s execution simply to protect against the possibility that the constitutional principle now in litigation will in time, but too late to benefit Hutchins, become the law. Cf. Stephens v. Kemp, — U.S. at—, 104 S.Ct. at 563 (reversing court of appeals and granting stay of petitioner’s execution pending decision by en banc court of appeals in a case raising substantially the same issue).
The mere fact — theoretically present to some extent in every death sentence case— that some change in extant law may occur that could compel invalidation of the conviction of a petitioner awaiting execution obviously does not suffice generally as an equitable consideration warranting stay of execution to allow merits consideration. The question is whether that general possibility is sufficiently more concrete here to invoke equitable protection. My conclusion is that on any practical assessment of the realities of the situation, it is not.
One district court in this circuit, based on the evidentiary record before it, has already rejected the Witherspoon claim sought now to be presented belatedly by Hutchins. See Barfield v. Harris, 540 F.Supp. 451, 463-64 (E.D.N.C.1982). On appeal, this court has expressly affirmed that district court decision. See Barfield v. Harris, 719 F.2d 58, 63 (4th Cir.1983) (affirming “for the reasons stated by the district judge”). Our decision in Barfield constitutes extant circuit law on the point, though concededly that decision, like all decisions, is potentially limited by its factual record.
Following this court’s opinion in Bar-field, another district court in this circuit concluded on a quite different and more expansive evidentiary record that sociological data demonstrates the fundamental unfairness of excluding from guilt-phase proceedings all potential jurors opposed to capital punishment in all circumstances. See Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984). That decision is now on appeal to this court. Moreover, the petitioner in Barfield, we are advised by counsel, has now sought leave to file in the Supreme Court a petition for certiorari out of time; but it is not known at this point whether Barfield will raise the Wither-spoon issue in any certiorari petition that may be filed in that case.
I do not believe that we need nor that we should address the merits of the jury-selection principle adopted by the district court in Keeten in order to assess in this case whether Hutchins’s execution should be stayed on equitable grounds to abide further developments in that case or possibly in Barfield. Two considerations compel for me the conclusion that the possibility that Hutchins will ever gain more than temporary respite from execution by reason of the authoritative adoption of the Keeten principle is too ephemeral to justify invocation of the ultimate equitable protection he seeks.
The first is that five justices of the Supreme Court, aware of the district court decision in Keeten and of the parallel decision in Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983) (appeal docketed), have, in vacating my earlier stay of execution, indicated that the pendency of those decisions did not warrant this equitable relief. Nothing of which I am aware has transpired in the interval to suggest that this would not remain the view of a majority of the Court. The second consideration is one properly developed in Judge Murnaghan’s opinion concerning the further possibility that the Keeten principle, even if ultimately adopted as the constitutional law of the land, whether in Barfield, Grigsby, Keeten, or Hutchins itself, would result in more than a temporary respite from the death sentence imposed upon Hutchins by North Carolina, given the undisputed, and apparently indisputable evidence of his commission of the criminal acts for which he was convicted. While such a consideration of *964course has nothing to do with vindication of the principle itself, it must have a great deal to do with assessing the equities of Hutchins’s request for a stay of execution because of possible emergence of that principle.
Because of North Carolina’s automatic resentencing-upon-stay law, it is not possible for us to follow the course recently followed by the Eleventh Circuit of granting a stay of limited duration specifically to permit final Supreme Court review of our ruling. See Antone v. Dugger, — U.S. —, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984). Fortunately, even within the North Carolina scheme, there remains time before the scheduled execution for such review to be sought. An opportunity thus remains to test whether we have misinterpreted, to Hutchins’s detriment, the implications of the Supreme Court’s vacation of my earlier stay.
I concur in the decision to deny the certificate of probable cause to appeal and the motion to stay execution.
In his second habeas petition, as now resubmitted, Hutchins raised two claims in addition to the Witherspoon issue: (1) that new psychiatric evidence demonstrated that Hutchins was insane at the time he committed the crimes of which he was convicted; and (2) that the Eighth Amendment prevented Hutchins’s execution because evidence revealed that Hutchins was presently insane. Having considered the briefs of the parties and the arguments of counsel on these points, we conclude that petitioner has not shown the requisite likelihood that he will prevail on an appeal from the district court’s decision dismissing the petition raising these claims, and we discuss them no further.