concurring.
Unlike Justices White and Stevens, I do not believe that under the circumstances of this case the District Court was obligated to rule on this successive petition for writ of habeas corpus.
This is another capital case in which a last-minute application for a stay of execution and a new petition for habeas cor*378pus relief have been filed with no explanation as to why the claims were not raised earlier or why they were not all raised in one petition. It is another example of abuse of the writ.1
On September 21, 1979, a jury convicted James Hutchins of two counts of first-degree murder and one count of murder in the second degree. He was sentenced to death. It is not denied that he deliberately murdered three policemen. After exhausting his state remedies, on September 24, 1982, Hutchins filed his first petition for federal habeas corpus in the United States District Court for the Western District of North Carolina. This was denied after an evidentiary hearing, and the United States Court of Appeals for the Fourth Circuit affirmed in a full opinion. Hutchins v. Garrison, 724 F. 2d 1425 (1983). On January 4, 1984, Hutchins filed a petition for certiorari with this Court seeking review of that decision.
Hutchins raised three claims in this habeas petition: (i) that his Sixth Amendment right to effective assistance of counsel had been denied because of a breakdown in communications with his court-appointed counsel; (ii) that the state trial court abused its discretion in denying defense counsel’s motion for a continuance; and (iii) that imposition of the death penalty in his case was unconstitutional because the Eighth Amendment prohibits capital punishment of a person who is “mentally or emotionally distressed” at the time of the crime. This Court, after careful consideration, denied certiorari on January 11, 1984. Post, p. 1065. That same day Hutchins began anew his quest for postconviction relief, raising claims previously not raised.
After both the North Carolina trial court and the North Carolina Supreme Court denied Hutchins’ new claims for postconviction relief, he filed a second petition in District *379Court on January 12, 1984.2 This raised three new claims: that he had new evidence of his alleged insanity at the time of the crime; that he had evidence that he currently is insane; and that the jury selection process was unconstitutional. Hutchins offers no explanation for having failed to raise these claims in his first petition for habeas corpus, and I see none. Successive petitions for habeas corpus that raise claims deliberately withheld from prior petitions constitute an abuse of the writ.3
Title 28 U. S. C. § 2244 makes clear the power of the federal courts to eliminate the unnecessary burden placed on them by successive habeas applications by state prisoners. It provides:
“(b) When after an evidentiary hearing on the merits ... [a federal court or federal judge has denied a petition for federal habeas corpus], a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States . . . unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.”
See also 28 U. S. C. §2254 Rule 9(b).
This case is a clear example of the abuse of the writ that § 2244(b) was intended to eliminate. All three of Hutchins’ claims could and should have been raised in his first petition for federal habeas corpus. The new evidence that Hutchins offers to support his claim that he was insane at the time of the crime is the report of a forensic psychiatrist prepared *380after a January 2, 1984, psychiatric examination. Hutchins, convicted some four years ago, and frequently before courts during the intervening years, does not explain why this examination was not conducted earlier.4 He does not claim that his alleged insanity is a recent development. In light of his claim that he also was insane at the time of the crime, such an assertion would be implausible. Finally, Hutchins does not explain why he failed to include his challenge to the jury selection in his prior habeas petition.
A pattern seems to be developing in capital eases of multiple review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion — only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus.
It would have been preferable had the District Court stated expressly that it would not entertain this successive petition because it constituted an abuse of the writ. Nevertheless, it is clear that the petition in this case was an abuse.
See the per curiam opinion of this Court, ante, p. 377, vacating the stay entered by Judge Phillips for the procedural posture of the case here.
There is no affirmative evidence that the claims were deliberately withheld. But Hutchins has had counsel through the various phases of this case, and no explanation has been made as to why they were not raised until the very eve of the execution date.
Hutchins’ case has been reviewed by at least seven courts, including this Court, and more than 25 judges.