dissenting.
At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins’ application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General’s Office filed in this Court a 3V2-page, handwritten application to vacate Judge Phillips’ stay. Without taking time to consider the basis of Judge Phillips’ stay — indeed without waiting to receive the final draft of Judge Phillips’ memorandum opinion — the Court has granted the application, apparently so that North Carolina can proceed with Hutchins’ execution before his death warrant expires at 6 o’clock this evening. Given the posture *384of this application and the dire consequences of error, I find the Court’s haste outrageous.
Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins’ execution.1 As Justice Brennan has shown, ante, at 382, Judge Phillips’ decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court’s decision is that five Members of the Court have voted to vacate Judge Phillips’ stay without even reading his opinion2 or fully considering respondent’s defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case.3 In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers.
Ironically, the Court’s zealous efforts to authorize Hutch-ins’ execution at the last minute may be futile. The North Carolina death penalty statute apparently requires that a new date of execution must be set whenever a stay of execution is issued and then vacated.4 N. C. Gen. Stat. § 15-194 *385(1983). Since Judge Phillips indisputably issued a stay of execution and the Court now vacates the stay, North Carolina law would seem to require that a new date of execution now be set.5 Of course, the meaning of this provision is a question of North Carolina law, and is therefore to be decided by North Carolina courts. I trust, however, that the responsible North Carolina officials will consider whether Hutchins has a valid claim under this provision before the State proceeds with Hutchins’ execution.
I dissent.
Much of the State’s application involves a challenge to Judge Phillips’ jurisdiction and an argument that Hutchins is procedurally barred from raising his juror-bias claim in federal court. The majority apparently agrees with respondent that these threshold claims are insubstantial.
Early this morning, the Court received over the telephone a short summary of Judge Phillips’ decision, which the Clerk’s Office transcribed. That brief, preliminary draft concluded with the statement, “l will say roughly the foregoing in a very short memorandum opinion that I will file tomorrow.”
In addition to the State’s handwritten application, the Court has received over the course of the day Hutchins’ response to the State’s application and supplemental handwritten papers from both parties. Although respondent has filed various briefs that he presented to other courts in this litigation, neither party has filed a complete transcript of the trial court voir dire, at which the deprivation of Hutchins’ constitutional rights allegedly took place.
The relevant statute reads: “Whenever ... a stay of execution granted by any competent judicial tribunal... has expired or been terminated,... a hearing shall be held in a superior court... to fix a new date for the *385execution of the original sentence. . . . The judge shall set the date of execution for not less than 60 days nor more than 90 days from the date of the hearing.” N. C. Gen. Stat. § 15-194 (1983) (emphasis added). The majority’s per curiam clearly concludes that Judge Phillips was a competent judicial tribunal with jurisdiction to issue a stay. See n. 1, supra.
Common decency demands such a postponement, especially since, under North Carolina law, Hutchins must already have been notified of his reprieve by Judge Phillips. See N. C. Gen. Stat. § 15-193 (1983).