dissenting.
I
The “right” of the State to a speedy execution has now clearly eclipsed the right of an individual to considered treatment of a substantial claim that he has been sentenced to death for an offense that he did not commit. Ernest John Dobbert, Jr., raised such a claim in a federal habeas corpus petition filed on August 30, 1984, and here is the entire history of the deliberate speed with which the claim was considered: On September 3, the Federal *1242District Court for the Middle District of Florida denied relief, 593 F. Supp. 1418 (1984), but issued a certificate of probable cause to appeal, thereby indicating that Dobbert’s petition had significant merit; three days after that, on September 6, the Court of Appeals for the Eleventh Circuit in a 2-1 vote affirmed the District Court’s judgment, 742 F. 2d 1274 (1984), with the dissenting judge pleading that “there has not been enough time in which justiciary [sic] to decide this case;” and that very same day, at 4:40 p. m., Dobbert filed a stay application with this Court. That application asked the Court to stay his execution just long enough so that Dobbert’s counsel could pause to brief properly the substantial constitutional issue raised by this case. But at 10 a. m. the next day — a scant 19 hours after Dobbert asked this Court to consider his claim and a mere 8 days after the claim was first brought before any court — Dobbert is to be executed. This is swift, but is it justice?*
There is substantial reason in this case to think it is not. Dobbert was convicted under Florida law of child abuse, child torture, second-degree murder, and the first-degree murder of his 9-year-old daughter; only the last of these carries with it the possibility of a death sentence. It is impossible to know, however, whether Dobbert actually committed the offense of first-degree murder as defined by Florida law, for the jury’s verdict on this count was infected by the trial judge’s repeated and invalid instruction on the scope of first-degree murder. The instruction at issue told the jury that it could convict for first-degree murder if it found that the daughter was killed by premeditated design or that she was killed without premeditation but while Dobbert was committing an “abominable and detestable crime against nature.” As *1243a matter of state constitutional law, the Florida Supreme Court, in a holding that preceded the crimes for which Dobbert was convicted, had held that the statutory term “crime against nature” is too vague to sustain a conviction. Franklin v. State, 257 So. 2d 21, 22 (1971). Dobbert was therefore found guilty after a felony-murder instruction that permitted the jury to convict him of a crime that did not exist under state law at the time of his conviction.
The jury was thus granted impermissible leeway in violation of Dobbert’s federal due process rights. This fundamental defect occurred when the trial judge — no fewer than six times during the instruction phase — instructed the jury with one variant or another of the following words:
“If a person has a premeditated design to kill one person . . . he is . . . guilty of murder in the first degree. The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree even though there is no premeditated design or intent to kill.” Tr., as printed in Record, Exhibit 5, p. 162 (emphasis supplied).
It is vital to understand what is put at stake by this definition of first-degree murder. First, the record offers no suggestion that the death of Dobbert’s daughter occurred during an arson, rape, robbery, burglary, or kidnaping — the only underlying felonies upon which Florida has predicated the crime of felony murder and the capital penalty that attaches to it. Second, the trial judge gave no narrowing definition of the “crime against nature,” and even if he had, there appears again to be absolutely no evidence that Dobbert’s daughter died while Dobbert was sodomizing her— presumably the core offense to which the vague statutory term applies. See Franklin, supra. Third, there was ample evidence that Dobbert beat his daughter, and there was testimony that he kicked her in the stomach the night that she died.
From these facts it is quite plausible that the jury relied on the very vagueness for which the Florida Supreme Court had already struck down the statute to conclude that, even if Dobbert had not premeditated the killing of his daughter, he nonetheless should be convicted of first-degree murder for child abuse leading to death. I do not now question whether a State could create such a crime, *1244but the indisputable fact is that Florida has not chosen to do so. Nor, as a corollary, has Florida chosen to make such an offense a capital one. Yet the jury in this case was not only permitted but invited six times to define a new capital crime to fit Dobbert’s offense. This leeway, resulting from statutory vagueness, was the very defect inherent in the statutory term for which the Florida Supreme Court invalidated it.
There is simply no way to tell upon which theory — premeditation or felony murder based on a nonexistent predicate offense— the jury relied. Indeed, when the jury specifically requested to be reinstructed on the definitions of first- and second-degree murder, the trial judge compounded the error by repeating the invalid instruction: “Now, murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping.” Tr., as printed in the Record, Exhibit 5, p. 184.
This is clearly error of federal constitutional magnitude. In Stromberg v. California, 283 U. S. 359 (1931), the Court announced a rule from which we have not since departed: “a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.” Zant v. Stephens, 462 U. S. 862, 881 (1983). It is also clear that Stromberg applies to state criminal proceedings, for Stromberg itself involved a state conviction. See also Williams v. North Carolina, 317 U. S. 287, 292 (1942); cf. Zant, supra, at 891-893 (White, J., concurring in part and concurring in judgment) (Stromberg applies when jury was invited to convict on two or more grounds, one of which was not sufficient to sustain the conviction). Moreover, the State essentially concedes that Stromberg error was committed, for the State does not argue that there was sufficient evidence of any form of felony murder recognized by Florida law.
The real question at this stage is whether this error — which goes to the question whether Dobbert was actually found guilty of first-degree murder — casts a serious enough doubt on the integrity of the jury’s verdict that the error is still reviewable at this stage of the proceedings. The instruction was not objected to at *1245trial, nor was the erroneous instruction raised in Dobbert’s first federal habeas petition. Citing these procedural derelictions of Dobbert’s counsel, the courts below — both state and federal — have refused to consider the merits of the alleged Stromberg violation.
There are sound arguments that the alleged violation in this case is so fundamental that neither Wainwright v. Sykes, 433 U. S. 72 (1977), nor the abuse-of-the-writ doctrine ought to be applied to allow Dobbert’s execution to take place before this Court is at least provided with focused briefing. The Court has recognized that the cause-and-prejudice standard must be applied in such a way that fundamental “miscarriage[s] of justice” will meet it, see id., at 91; as Justice Stevens noted in his concurrence in Wainwright, “if the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused.” Id., at 95. Similarly, Sanders v. United States, 373 U. S. 1, 15 (1963), makes clear that a federal court may consider even claims raised and decided in a previous habeas petition “if the ends of justice” would thereby be served; surely the same standard or a lesser one should apply to a successive petition that raises a new claim, at least when that claim casts significant doubt on a defendant’s guilt. See Sanders, supra, at 18-19 (A “federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits” of certain claims raised for the first time on a successive habeas petition). Lower federal courts in settings similar to the one here have applied these principles to review fundamental trial errors to which timely objections have not been made. See, e. g., Adams v. Murphy, 653 F. 2d 224, 225 (CA5 1981) (reversing conviction based on nonexistent state crime despite absence of trial objection to instruction). When, as in this case, the question is the fundamental one of guilt or innocence on the indicted charge, and the case is a capital case, the argument is strong that the “ends of justice” and fundamental “miscarriage of justice” standards have been met. I would allow Dobbert to make that argument in a certiorari petition.
As the United States District Court for the Middle District of Florida acknowledged, this is a “difficult case” with regard to the question of whether the abuse-of-the-writ doctrine should apply. 593 F. Supp., at 1440. We need not resolve that “difficult” issue today, however, to decide the only issue before the Court on this stay application: whether that claim is “difficult enough” and potentially worthy enough of the Court’s attention that a stay of *1246the execution ought to be granted until certiorari papers can be filed and the Court can make a considered evaluation of the argument. Put another way, the question is whether there is a significant claim that the State cannot execute Dobbert on the basis of a conviction that may be constitutionally invalid—with respect to an issue affecting guilt or innnocence—merely because Dobbert’s attorneys have not made timely objections on the point.
In sum, there is no question that Dobbert abused and tortured his children, but there is a serious question as to whether the defect in the instruction allowed the jury to bypass the question of premeditation by concluding that the girl’s death resulted from Dobbert’s callous and reckless beating of her. That may well make Dobbert guilty of second-degree murder in Florida, but it cannot make him guilty of first-degree murder there. Nor can it subject him to the death penalty in that State. Dobbert is certainly no innocent man, but he may well be a guilty one to whom Florida’s legislators have not chosen to apply the death penalty.
II
Because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would in any event grant the stay application and vacate the death sentence. But I am deeply troubled by the undue dispatch with which a majority of this Court is willing to send this stay applicant, as well as a host of others, see n., supra, to their death. In the case of an applicant like Dobbert, who raised a substantial claim going to the question of whether he committed a capital offense, the majority’s haste is particularly disquieting.
The frenzied rash to execution that characterizes this case has become a common, if Kafkaesque, feature of the Court’s capital cases. See, e. g., Wainwright v. Adams, 466 U. S. 964, 965 (1984) (Marshall, J., dissenting) (noting the Court’s “indecent desire to rush to judgment in capital cases”); Woodard v. Hutchins, 464 U. S. 377, 383 (1984) (Brennan, J., dissenting) (criticizing “rash to judgment” in Court’s decision to vacate stay of execution); Autry v. Estelle, 464 U. S. 1, 5 (1983) (Stevens, J., dissenting) (criticizing decision to deny stay of execution); see also Autry v. McKaskle, 465 U. S. 1085 (1984) (Marshall, J., dissenting); Woodard v. Hutchins, 464 U. S., at 383 (White and Stevens, JJ., dissenting); id. at 383-384 (Marshall, J., dissenting); Barefoot v. Estelle, 463 U. S. 880, 906 (1983) (Marshall, J., dissenting).