concurring:
I concur.
As I view what my colleagues have written, they are not in disagreement, and I do not disagree with the several major points they have so well treated. I believe it is a mistake, however, to consider the merits of the underlying constitutional claim. I would limit this opinion and hold simply that the district court did not abuse its discretion in dismissing the second petition for writ of habeas corpus.
We are not considering an appeal on the merits, but an application for a certificate of probable cause to appeal from the district court’s ruling that Hutchins’s second petition constitutes an abuse of the writ. The issue is not whether he made a substantial showing that he was denied a federal right at the habeas corpus hearing, but whether the district court abused its discretion in holding that Hutchins had deliberately failed to present his constitutional claim in his first petition. Under the circumstances of this case, the district court’s holding, in my view, was virtually required by the Supreme Court’s holding in Woodard v. Hutchins, — U.S.—,—, 104 S.Ct. 752, 753, 78 L.Ed.2d 541, 543 (1984) (.Hutchins II). Although the Supreme Court there considered and granted North Carolina’s application to vacate Judge Phillips’s stay of execution, it discussed the habeas corpus petition on which the stay was founded and described it as “a clear example of the abuse of the writ that § 2254(b) was intended to eliminate.” Id. — U.S. at -, 104 S.Ct. at 753, 78 L.Ed.2d at 544. Although the Supreme Court was probably not obliged to reach that issue in the context of a stay proceeding, its unqualified statement that Hutch-ins’s second petition represented “a clear example of the abuse of the writ” cannot be ignored by lower federal courts considering the identical question. Keeten was not a new development. It had been pending in Judge McMillan’s court for two years, and the decision was issued the day before the Supreme Court considered Hutchins II. In these circumstances, it cannot be said that the district court abused its discretion.