concurring in the result:
I agree that we must reverse and remand this matter because the district court *1478erred in ruling that Neuschafer abused the writ. I write separately to explain why I do not agree with the majority that our decision in Tannehill v. Fitzharris, 451 F.2d 1322 (9th Cir.1971) necessarily “allows petitioners to exhaust their state remedies one by one and to bring a new federal habeas petition each time they exhaust a state claim.” Maj. op. supra at 1475. I also suggest a procedure which, if followed by district courts, is fully protective of the petitioner’s rights, consistent with our decision in Tannehill, and responsive to my colleague’s concern that the law of our circuit appears to allow petitioners to file a judicially uncontrollable succession of petitions.
The issue we must resolve in this matter is whether a petitioner abuses the writ of habeas corpus by filing a petition in federal court before exhausting all his federal constitutional claims in state court, in a case where:
(1) petitioner has acted expeditiously in seeking postconviction relief from the state court;
(2) the state’s highest court has refused to stay the imposition of petitioner’s death sentence and has refused to grant newly appointed counsel sufficient time to review the record to identify and exhaust all of petitioner’s federal constitutional claims; and
(3) petitioner is scheduled to be executed in four days.
This grave question arises from the following procedural history: Neuschafer’s conviction and sentence were affirmed by the Nevada Supreme Court on August 27, 1985. The remittitur issued on September 17, 1985. On October 7, 1985, the state trial court fixed an execution date of November 5, 1985. With no counsel to assist him, Neuschafer immediately prepared a pro se petition for writ of habeas corpus. He filed the petition in the state trial court on October 22, 1985. His moving papers included a request for the appointment of counsel to assist him in seeking state post-conviction relief. On October 24, 1985, the state trial court denied Neuschafer’s pro se petition without prejudice, and refused to appoint counsel, on the ground that the petition failed to conform to the state’s requirement that it allege specific facts which, if true, would entitle the petitioner to relief.
On October 28, 1985, with Neuschafer’s execution date rapidly approaching, the public defender, on his own initiative and without court appointment, filed a motion in the state trial court for a 120-day stay of the execution date. In a supporting affidavit, the public defender advised the state trial court that Neuschafer had yet to receive the assistance of counsel in reviewing the trial record to determine whether any meritorious constitutional claims could be raised in state postconviction proceedings.
On October 30, 1985, the state trial court denied the motion for a stay of execution. On the same day, less than a week before the November 5, 1985 execution date, the state trial court appointed the state public defender to represent Neuschafer.
The state public defender immediately appealed the state trial court’s ruling denying a stay of the imposition of the extreme penalty to the Nevada Supreme Court. On November 1, 1985, two days after the state trial court had denied Neuschafer’s motion for a continuance and a stay of his scheduled execution date, the Nevada Supreme Court refused to stay the execution and dismissed the appeal. Later that same day, Neuschafer filed his first federal petition for writ of habeas corpus.
The federal petition alleged one constitutional claim — that state law enforcement officers violated Neuschafer’s privilege against self-incrimination when they proceeded to interrogate him notwithstanding his request for counsel. The petition was accompanied by motions for the appointment of counsel and for a stay of execution.
On November 4, 1985, the district court stayed the scheduled execution, appointed the federal public defender to represent Neuschafer, and granted Neuschafer until November 25, 1985 to file an amended petition alleging all claims that could be raised in federal court. On November 25, 1985, *1479counsel filed in the district court a supplemental petition for habeas corpus realleg-ing Neuschafer’s claim of unconstitutional police interrogation. The supplemental petition also presented the remaining constitutional claims that Neuschafer had earlier exhausted on direct appeal to the Nevada Supreme Court.
No unexhausted claims of federal constitutional error were included in the supplemental petition. The supplemental petition, thus, complied with the rule that federal habeas petitions allege only claims that have been exhausted in state court. See 28 U.S.C. § 2254(b) (1982) (petition shall not be granted unless applicant has exhausted state remedies that are available and effective in protecting applicant’s rights); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982) (“state remedies must be exhausted except in unusual circumstances”). The record is silent as to whether Neuschafer or his attorney knew of any unexhausted federal constitutional claims prior to the filing of the supplemental petition in the district court.
The law is clear that a finding of abuse of the writ is warranted only when the petitioner has deliberately and knowingly withheld certain claims for the purpose of gaining successive hearings. The Court addressed this point in some detail in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The Court stated:
[F]ull consideration of the merits of the new application can be avoided only if there has been an abuse of the writ____ Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.
Id. at 17-18, 83 S.Ct. at 1078-79 (emphasis added).
Congress codified the Sanders holding in Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil. § 2254 (1982) [hereinafter Rule 9(b) ]. Rule 9(b) provides: “A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” The Advisory Committee Note explains that Rule 9(b) “requires that the judge find petitioner’s failure to have asserted the new grounds in the prior petition to be inexcusable.” Rule 9(b) Advisory Committee Note (emphasis added).
In Rose v. Lundy, the Supreme Court held that a “mixed” habeas petition, i.e., a petition alleging both exhausted and unex-hausted claims, must be dismissed by the district court. 455 U.S. at 522, 102 S.Ct. at 1205. Justice O’Connor observed, in dictum, that “a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions.” Id. at 521, 102 S.Ct. at 1205. A plurality of the Court concurred in this dictum. Four other justices, however, suggested that a second petition alleging new claims should not be dismissed on the ground of abuse of the writ unless petitioner deliberately withheld the claims, for an improper purpose, from his first petition. See id. at 529, 102 S.Ct. at 1209 (Blackmun, J., concurring in the judgment) (“[Sjubse-quent petitions may be dismissed, as Justice BRENNAN observes, only if the prisoner has ‘abused the writ’ by deliberately choosing, for purposes of delay, not to include all his claims in one petition.”); id. at 536, 102 S.Ct. at 1212 (Brennan, J., joined by Marshall, J., concurring in part and dissenting in part) (“Sanders made it crystal clear that dismissal for ‘abuse of the writ’ is only appropriate when a prisoner was free to include all of his claims in his first petition, but knowingly and deliberately chose not to do so in order to get more than ‘one bite at the apple.’ ”); id. at 538, 102 S.Ct. at 1213 (White, J., concurring in part and dissenting in part) (“[I]f the judge *1480rules on those issues that are ripe and dismisses those that are not, I would not tax the petitioner with abuse of the writ if he returns with the latter claims after seeking state relief.”).
If Rose v. Lundy left any doubt concerning the standard to be applied in determining whether withholding of claims constitutes abuse of the writ, this court resolved the doubt in Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985). We declared: “Previously unadjudicated claims must be decided on the merits unless the petitioner has made a conscious decision deliberately to withhold them, is pursuing ‘needless piecemeal litigation,’ or has raised the claims only to ‘vex, harass, or delay.’ See Sanders, 378 U.S. at 18 [83 S.Ct. at 1078].” Id. at 961 (parallel citation omitted).
As the majority correctly notes, our decision in Tannehill indicates that a petitioner may not be charged with making “a conscious decision deliberately to withhold” a claim if the reason for the withholding is a concern that inclusion of the claim will prompt the federal court to dismiss the entire petition. We stated in Tannehill:
[T]he district district court found the petition an abuse of the writ____ [I]t appears that Tannehill was seeking collateral relief from the state courts, which was finally denied only a few months before he filed this petition. It may be that he believed in good faith, perhaps correctly, that his [unexhausted] claims for federal relief would have been barred until that time by failure to exhaust state remedies. If so, he did not “deliberately” abuse the writ. See Sanders, supra; Wong Doo v. United States, 265 U.S. 239 [44 S.Ct. 524, 68 L.Ed. 999] (1924).
451 F.2d at 1324 (parallel citation omitted).
The decision in Rose v. Lundy instructs attorneys and petitioners that they should not file habeas petitions in federal court alleging claims that have yet to be exhausted in state court. In light of Rose v. Lun-dy, therefore, petitioners always have a valid reason for withholding unexhausted claims from a federal habeas petition — inclusion of the claims will render the petition “mixed” and mandate its dismissal. Our decision in Tannehill properly holds, in effect, that attorneys and petitioners will not be vulnerable to charges that they have abused the writ merely because they have complied with the requirement of Rose v. Lundy that unexhausted claims be withheld from habeas petitions presented to the federal courts.
A petitioner who is able, prior to his execution date, to identify and exhaust all his federal claims before filing his initial habeas petition in federal court can readily comply with Rose v. Lundy.
In Tannehill, we concluded that the mere fact that a state prisoner files an exhausted claim in federal court prior to exhausting all of his federal constitutional claims in state court is not sufficient, standing alone, to show an abuse of the writ. Our decision in Tannehill does not preclude a finding of abuse of the writ under such circumstances, however, if the record shows that the petitioner was not acting in good faith or was deliberately seeking to present his claims in a piecemeal fashion.
A state prisoner who (1) has been denied a continuance to exhaust all of his claims in the state court, and (2) faces execution in four days, has no practical choice but to seek a stay from the federal court before the executioner makes moot his right to a trial free of constitutional error. As noted above, section 2254 and Rose v. Lundy require the petitioner to limit his allegations to claims that have been exhausted in state court. The holding in Rose v. Lundy, however, provides no guidance to a person faced with Neuschafer’s life or death option after his requests for time to exhaust his claims have been denied by the state’s highest court.
The record in the matter now before us demonstrates that Neuschafer had a valid, indeed compelling, reason for filing his first federal petition before exhausting all his claims — his execution was imminent, and the state court had refused to grant a stay of execution to permit his counsel to review the record and to exhaust any remaining claims. See Richmond, 774 F.2d at 960, 961 (petitioner was “compelled” to *1481file second federal petition when he was resentenced to death following successful attack on death penalty statute in his first petition; petitioner’s purpose in filing second petition was not solely to vex, harass or delay, where he “challenged the reimpo-sition of his sentence in a good faith attempt to avoid the penalty of death”). Given the imminence of his scheduled execution, the only way Neuschafer could assure himself a hearing in federal court on his constitutional claims was by immediately filing a habeas petition.
Neuschafer’s petition properly alleged only those claims that had already been exhausted. Allegation of other claims would have been a completely idle act, since Neuschafer would have had to amend the petition to delete such claims. See Rose v. Lundy, 455 U.S. at 520, 522, 102 S.Ct. at 1204, 1205 (district courts must dismiss petitions alleging both exhausted and unexhausted claims; petitioner “can always amend the petition to delete the unexhausted claims,” then resubmit it). Because he faced death if he did not proceed with his exhausted claims, Neuschafer had no alternative but to act precisely as he did.
Under the perilous circumstances facing Neuschafer when he filed his original petition in the district court, Neuschafer did not abuse the writ in pursuing his exhausted claims prior to identifying and exhausting his remaining federal constitutional claims. Accordingly, when counsel later discovered and exhausted additional federal constitutional claims, he did not abuse the writ in filing a second federal petition alleging the subsequently exhausted claims.
This is not a case in which the petitioner intentionally elected not to seek postconviction relief until long after the affirmance of his conviction on direct appeal. Cf. Antone v. Duggar, 465 U.S. 200, 206 n. 4, 104 S.Ct. 962, 965 n. 4, 79 L.Ed.2d 147 (1984) (per curiam) (although counsel was appointed to prepare federal habeas petition “when execution was imminent” and had little time to familiarize himself with the case, omission of exhausted claims from petition was inexcusable because petitioner inexplicably “allowed almost two years to elapse between the affirmance of his conviction and the filing of his first motion for postconviction relief in the state courts”). When a petitioner has ample time to seek collateral relief but inexplicably waits until the eve of execution to do so, he should not be heard to complain that time constraints prevented his counsel from identifying and exhausting all claims in time to include them in a single federal habeas petition.
The procedural history of this case, as summarized at the outset of this opinion, readily refutes any suggestion that Neus-chafer has pursued “needless piecemeal litigation” or has acted with the intent to “vex, harass, or delay.” The severely limited time constraints under which the state public defender was forced to work resulted, not from any dilatory tactics on Neus-chafer’s part, but from the Nevada Supreme Court’s refusal to grant newly appointed counsel’s request for a reasonable continuance and a stay of execution. Had the Nevada Supreme Court granted Neus-chafer’s counsel a reasonable opportunity to review the trial record, he could have filed one federal habeas corpus petition after identifying and exhausting Neuschafer’s remaining federal constitutional claims in state court.
The majority suggests that because the district court granted Neuschafer’s newly appointed federal counsel 21 days within which to supplement Neuschafer’s pro se petition, there is no merit to the argument that the press of time prevented counsel from identifying potential constitutional claims. See maj. op. supra at 1476 n. 11. I respectfully disagree. The state public defender had previously indicated to the state court that 120 days would be needed to complete a thorough review of the record. Assuming that this was a reasonable request (nothing in the record suggests otherwise), the 21-day extension granted to the federal public defender seems, in contrast, totally inadequate. In any event, counsel is surely entitled to more than 21 days within which to review the entire trial record in a capital case for constitutional errors, file a supplement to the pending petition, and prepare *1482for an evidentiary hearing in the district court in a case where, as here, his client faces death.
Even assuming that 21 days was a sufficient length of time within which to review the record, I do not agree with the implication in the majority’s opinion that counsel was under a duty to alert the court to the existence of any unexhausted claims and to request that the federal proceedings be held in abeyance pending exhaustion of such claims in the state system. See maj. op. supra at 1474 n. 5, 1476 nn. 8, 11. The district court granted counsel 21 days within which to file a supplemental petition alleging all the claims that could then be raised in federal court. Counsel fully complied with the court’s direction. If, at the conclusion of the 21-day period, counsel was aware of any unexhausted claims, he properly omitted them from the supplemental petition. Inclusion of such claims would have mandated dismissal of the “mixed” petition, and thus termination of the stay of execution, pursuant to Rose v. Lundy. Surely counsel cannot be faulted for pursuing the only course of action through which Neuschafer could hope to obtain a stay of execution and a hearing on his exhausted claims.
The problem presented in this case could have been avoided if the district court, in granting a 21-day extension, had directed Neuschafer’s counsel to review the record and to inform the court whether any claims remained unexhausted. The court could then have given Neuschafer the choice of either abandoning such unex-hausted claims or requesting that the federal proceedings be held in abeyance until such time as the claims had been exhausted in the state system. Had the court “flushed out” the unexhausted claims in that manner, Neuschafer’s second petition would have been unnecessary.
In future cases such as this — where a petitioner is compelled to file a habeas petition alleging exhausted claims at the eleventh hour, because the state court has refused to grant counsel sufficient time to exhaust all claims in state court — the district court can avoid the filing of a subsequent petition by issuing an order requiring the prisoner’s counsel, within a reasonable time, to review the trial record and inform the court whether there are any other exhausted or unexhausted claims. The court should then give petitioner the choice of abandoning the unexhausted claims or exhausting them in state court before proceeding with a hearing on all exhausted claims.
Adherence to this procedure will eliminate the possibility that petitioners will “exhaust their state remedies one by one and ... bring a new federal habeas petition each time they exhaust a state claim.” Op. at 1475. Once counsel has disclosed to the court all exhausted claims, the court may require the petitioner either to amend the pending petition to include such claims or to abandon them on the record. Similarly, once counsel has disclosed all unexhausted claims, the court may require the petitioner to exhaust them in the state system or to abandon them on the record. The court need not hold a hearing on the pending petition until all disclosed claims have been either exhausted or abandoned on the record.
If this procedure is followed, the filing of a second petition alleging a new federal constitutional claim will be inexcusable, and an abuse of the writ, unless petitioner is able to allege a change in the law, a newly discovered fact, or ineffective assistance of counsel in connection with the first petition.
For the foregoing reasons, I concur in the decision to reverse the district court’s order dismissing Neuschafer’s second petition. I would remand this matter with instructions that the district court hold an evidentiary hearing to determine whether Neuschafer or his counsel knowingly withheld unexhausted claims from the supplemental petition filed November 25, 1985 with the intent to engage in “needless piecemeal litigation” or “to vex, harass or annoy.”