dissenting:
I
I must respectfully dissent from the denial of a stay and the majority’s rejection of this appeal. I would grant a temporary stay and give more deliberate consideration to this troubling appeal. My reasons follow:
The significance of the issuance here of the certificate of probable cause by the district judge should be considered in light of the standard laid down by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). The Court there held that “a certificate of probable cause requires petitioner to make a ‘substantial showing of the denial of [a] federal right.’ ” Id. at 893, 103 S.Ct. at 3394. The Court has explained that this standard means that “the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (emphasis in original). The Tenth Circuit, of course, applies the same standard. See Stevenson v. Thornburgh, 943 F.2d 1214, 1216 (10th Cir.1991). Recently, the Supreme Court applied anew the Barefoot standard, which it quoted: “A certificate of probable cause requires petitioner to make a ‘substantial showing of the denial of [a] federal right.’ ” Lozada v. Deeds, — U.S. -, 111 S.Ct. 860, 861, 112 L.Ed.2d 956 (1991) (per curiam). Thus, we must consider the impact of the district judge’s issuance of the certificate in light of these controlling precedents. It is implicit that he recognized that the issues raised by Parks’ habeas petition do make such a substantial showing.1
*998This analysis leads directly to the standard for the issuance of a stay of execution in a second or successive habeas petition. Barefoot recognizes that such second or successive petitions present a different issue from first petitions in habeas. For a first petition, a stay of execution should be granted to prevent an appeal in a first habeas case from becoming moot. However, for second and successive federal ha-beas proceedings, “the granting of a stay should reflect the presence of substantial grounds upon which relief might be granted.” Barefoot, 463 U.S. at 895, 103 S.Ct. at 3396. Recently, the Court has made clear that it still follows the Barefoot test as applicable for second or successive federal habeas petitions in death cases. See Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (vacating a stay under the Barefoot test).
II
In the instant habeas petition, Parks alleges that critical evidence concerning police interviews with David Bourn, a principal witness at the sentencing phase of Parks’ trial, was not revealed. Although requested well before Parks’ murder trial, these reports were not revealed by the state until the fall of 1991. Brief of Appellant at 56 (No. PC-92-79, Okla.Crim.App.); Brief of Appellant at 16 n. 13 (No. PC-92-78, Okla.Crim.App.). While the state complains about delay in presenting this new evidence, it overlooks the undisputed withholding of the reports until late 1991. The state does not deny that Parks requested this material in 1978, eight months before Parks’ trial, and that the evidence did not come to light until 1991.2
In actuality, there were statements within the police department records which are reproduced as Appendixes NN and OO filed in this federal habeas case. These concern the earlier assault upon David Bourn at the high school which Bourn and Parks attended, and which could have been used at the sentencing phase for valuable impeachment of Bourn. Bourn was a key prosecution witness at the sentencing phase of Parks’ trial. The first undisclosed report, dated February 2, 1972, by Officer Burrow reported a statement by David Bourn. Bourn said that a “NM had approached him and hit him as he was leaving one of the classroom areas and that another two or three male subjects had also jumped in and assisted NM in kicking him. He stated that he did not know if [] the other subjects were white or [] colored.” Thus, Bourn’s first statement did not identify Parks as his initial and principal assailant, contrary to Bourn’s testimony at the penalty phase. Bourn was also unable to identify the number, race, or names of the other assailants in these 1972 statements to the police officers shortly after the altercation.3
The second report, Appendix OO to the federal habeas petition, is a report on the same incident by Officer Wolf. That re*999port says that Assistant Principal W.L. Langwell stated:
that he had some suspects in mind [ ] and had called DAVID BOURN into his office to make identification. He stated that the suspects that he had in mind were not identified by DAVID [bu]t that DAVID saw the defendant GARY WAYNE RAY sitting in the office and immediately said [] that he was the assailant that had originally struck him in the face on 2-2-72.
[T]he victim [Bourn] gave the statement that the suspect GARY RAY started following him down the main hall at the north end of the school when they got outside and into ... the courtyard. The suspect [Ray] walked up besided [sic] him and struck him in the right eye with his fists knocking him down at this time two other suspects jumped on his back and one began kicking him.
Appendix 00 at 2 (emphasis added).
The critical significance of the unrevealed police reports is that their nondisclosure kept important impeaching evidence out of the hands of Parks’ attorneys at the penalty phase. At that point, the prosecutor used Bourn effectively to counter the only mitigating evidence introduced for Parks — his father’s testimony that he “got along with everybody, had no problems.... in the neighborhood where we live ... there was always violence, fights and things like that; and he [Parks] never did get in any fights or anything like that.” Tr. 668 (emphasis added).
When Bourn testified in the sentencing phase, contrary to his statements to the police, he said that his initial assailant was Parks:
Q. Who struck you in the side of the face?
A. The first time it was ... had been Robyn Parks.
Q. Robyn Parks. All right.
Tr. 687-88 (emphasis added).
The prosecutor denigrated the mitigating evidence from Parks’ father with obvious support from this testimony by Bourn. After going over the father’s statements that Parks was a happy-go-lucky youth, the prosecutor said: “But [Parks’ father] also ... tried to give you the impression that [Parks] got along with everybody, and he had no problems, he didn’t get in fights and never participated in any.” Tr. 705-06. The prosecutor argued that the incident was not just a fight, stating that:
you don’t get that kind of charge [robbery by force] by a fight, so it was not a fight. It was three boys that just beat David Boren [sic] up to get his money. And what did he get? A lousy six cents. Can you imagine knocking a man to the ground, hitting him and stomping him, and kicking him, turning his pockets inside out for a lousy six cents?
Tr. 699.
The testimony of Bourn, which could not be impeached without the statements, and the arguments of the prosecutor are also significant because of their effect on the process of weighing the evidence of the aggravating circumstance found — that the murder was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” The evidence of Bourn and the argument, unanswered by the impeaching statements that Parks was not the initial and primary assailant, enhanced the jury’s picture of Parks as a violent man and undoubtedly was damaging to Parks in weighing the aggravating circumstance and the mitigating evidence. With the help of the police reports, the defense could have minimized this damage considerably.
In connection with the facts outlined above, and the statements to the police that did not come to light until the fall of 1991,1 note that in our earlier panel opinion in Parks v. Brown, 840 F.2d 1496 (10th Cir.1987), the panel viewed the assault evidence as not significant in the penalty phase based on the record before the panel, noting the failure of the jury to find the aggravating circumstance of Parks being a continuing threat to society. However, there are two points that are now apparent that were not before the panel. First, the panel said “the jury was fully informed as to the circumstances giving rise to the robbery charge.” Id. at 1503. We now know that the facts were not fully developed *1000because of the undisclosed police reports. Moreover, the added point we must focus on is the effect of Bourn’s altered trial testimony on Parks’ sole mitigating evidence — his father’s testimony that he had not been involved in violence. These points present a very different picture than our panel had in 1987 or the sentencing jury had in 1978.
Ill
Parks does not rely upon showing cause and prejudice for procedural default or abuse of the writ. Instead, he asserts that a “fundamental miscarriage of justice” will occur if his constitutional claims are not considered. This exception to the bars to federal habeas review has been mentioned by the Supreme Court in a series of cases. See McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17, 106 S.Ct. 2616, 2627 n. 17, 91 L.Ed.2d 364 (1986); Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986); Smith v. Murray, 477 U.S. 527, 537-39, 106 S.Ct. 2661, 2667-69, 91 L.Ed.2d 434 (1986); Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435 (1989).
Moreover, this fundamental miscarriage of justice exception has been translated over into the sentencing phase for death penalty cases. See Smith v. Murray, 477 U.S. at 537-38, 106 S.Ct. at 2667-68 (considering whether the petitioner was guilty of an aggravating circumstance). This court has likewise applied the fundamental miscarriage of justice analysis in the context of the penalty phase of a death penalty case. See Andrews v. Deland, 943 F.2d 1162, 1186 (10th Cir.1991).
Here, Parks asserts three primary claims for habeas relief.4 The district judge held the first claim constituted an abuse of the writ, and that the remaining two were successive claims previously asserted and denied in Parks’ first federal habeas petition.
The ruling that presents a most serious question for us is the district court’s decision concerning Parks’ second claim — that the state improperly introduced false and misleading evidence, distorting Parks’ role during the incident with Bourn, in the sentencing phase in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and that the prosecution suppressed the police reports and prevented the impeachment of Bourn’s penalty-phase testimony pertaining to that incident in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court concluded that Parks’ claim, which hinged solely on his assertion of factual innocence of the death penalty, did not present a “colorable showing” necessary for a finding of “actual innocence” under Deutscher v. Whitley, 946 F.2d 1443 (9th Cir.1991). The district judge denied this claim because he held that the jury had rejected “the state’s arguments for the sole aggravating circumstance to which the robbery was relevant, when it refused to find that there was a probability that Parks would commit criminal acts in the future that would constitute a continuing threat to society.”5 Order at 13-14.
*1001This basis for rejecting the significance of the undisclosed evidence in the police reports is similar to the reasoning, discussed above, in our panel opinion in Parks v. Brown, 840 F.2d 1496, 1503 (1987). We now know, however, that the jury was not fully informed as to the circumstances giving rise to the robbery. Instead, we now know that there were statements recorded very shortly after the robbery incident in which Bourn did not identify Parks as his initial and principal assailant, but instead so identified Gary Ray. At the very least, the police reports would have given powerful impeaching evidence to Parks in the penalty phase to counter Bourn’s testimony which challenged Parks’ only mitigating evidence — that he was a nonviolent youth. It appears that the undisclosed evidence would thus make a substantial showing under the standard from Deutscher adopted by the district judge; the record now gives substantial support to Parks’ claim “that constitutional error infected the sentencing process to such a degree that it is more probable than not that, but for constitutional error, the sentence of death would not have been imposed.” Deutscher, 946 F.2d at 1446.6
Parks forcefully argues that “the prosecution presented materially inaccurate, false testimony ... in violation of the Eighth and Fourteenth Amendments.]” Memorandum of Law in Support of Motion for Stay of Execution at 29 (citing Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). Under the precedents cited, if the prosecutor knowingly presented false evidence, the validity of Parks’ sentencing becomes highly suspect. The grant of a certificate of probable cause was thus warranted and full consideration must be given to the constitutional claims.
In sum, the Brady and Napue claims, bottomed on the undisclosed police reports now revealed, raise issues which are, under the first prong of the Barefoot standard, “debatable among jurists of reason.” Moreover, the Brady claim satisfies the second prong of the standard because the availability at trial of the reports for impeachment could have resulted in the jury’s resolving sentencing “in a different manner.” Thus, the district court correctly granted a certificate of probable cause.
I conclude that here, in light of the Brady and Napue claims, there are “substantial grounds upon which relief might be granted.” Delo v. Stokes, 110 S.Ct. at 1881 (quoting Barefoot, 463 U.S. at 895, 103 S.Ct. at 3396). Unlike the circumstances in Delo, here the abuse of the writ does not apply because the recently disclosed evidence supports the Brady and Napue claims so that not considering those constitutional claims would result in a “fundamental miscarriage of justice.” Smith v. Murray, 477 U.S. at 537-38, 106 S.Ct. at 2667-68.
As additional support for a stay, even if the application of the Deutscher standard is not ultimately adopted as proper in this circuit, the split in the courts of appeals over the appropriate standard to gauge whether a defendant is “actually innocent” of the death penalty indicates that a stay for further review should be granted. See Sawyer v. Whitley, 945 F.2d 812, 815 (5th Cir.), cert. granted, — U.S. -, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991). Additionally, Parks’ substantial Napue claim demonstrates that a stay is necessary to determine whether an evidentiary hearing is required because Parks has never received a “full and fair evidentiary hearing” on this claim as required by Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). See Harris v. Vasquez, 901 F.2d 724, 727 (9th Cir.) (opinion by Noonan, J.), application to vacate stay *1002denied, 494 U.S. 1064, 110 S.Ct. 1799, 108 L.Ed.2d 781 (1990) (granting stay for an evidentiary hearing in the district court).
I must dissent from the denial of a stay and the final disposition of this serious appeal without more deliberate consideration.
. The significance of the grant of the certificate of probable cause by the district judge is not diminished by the judge’s denial of a stay of execution pending appeal. In his Order denying that stay, the judge did not address the merits of the motion for a stay pending appeal. Instead, he stated that: "As petitioner has filed his Notice of Appeal and his appeal is thus now pend*998ing in the United States Court of Appeals for the Tenth Circuit, the application filed in this court is denied.”
. Attached to the Brief of Appellant in No. PC-92-79 (Okla.Crim.App.), is a "Motion to Produce Exculpatory Evidence,” with a certificate of mailing to the District Attorney of Oklahoma County on January 23, 1978, eight months before Parks’ trial in September 1978. The motion specifically requested "all information of whatever form, source or nature which tends to exculpate him [Parks] either through the indication of his innocence or through the potential impeachment of any state witness ... and all information ... impeaching the credibility of any potential state witness [.]” (emphasis added).
In a post-conviction proceeding in the District Court of Oklahoma County, Parks filed a pro se motion on August 11, 1987. That motion specifically asked the court to require disclosure of recordings and transcriptions of statements by ... William David Bourn and IKS. Langwell... [and] any sworn or unsworn statements that the state has in its file regarding this particular case ... and all information ... impeaching the credibility of any potential state’s witness [.]” (emphasis added).
. The importance of the early statements to the police, all given within eight days after the assault on Bourn on 2/2/72, is shown by the time lapse from February 1972 until Parks’ murder trial over six years later in September 1978 when Bourn gave very different testimony. Obviously, the early statements bear special importance.
. Parks’ three claims are: (1) he was deprived of a fair trial because (a) his counsel was ineffective in failing to investigate various factual and other aspects of the guilt-innocence phase of his case, (b) the prosecutor created false impressions about the trial evidence, and (c) the prosecutor suppressed exculpatory evidence necessary to the trial; (2) prosecutorial misconduct denied him a fair sentencing determination; and (3) sentencing counsel was ineffective in failing to investigate facts relative to sentencing and in failing to present appropriate mitigating evidence.
. In addition to the more important concerns expressed below, it should be noted that the district court incorrectly dismissed Parks’ penalty phase-related Brady and Napue claims as "successive." These claims were not presented in the first petition (not coming to light until 1991); therefore, they are not successive. Also, the district court dismissed Parks’ second general claim without an evidentiary hearing on his allegations of prosecutorial misconduct regarding the nondisclosure of alleged Brady material without any comment at all. Unlike his dismissal of Parks’ first general claim, the district court did not state that on the face of this record Parks could not show that the prosecution knowingly presented false evidence at Parks' sentencing phase trial.
. In Oklahoma, the mitigating evidence concerning Parks’ nonviolent nature was of critical importance in the penalty phase weighing process. The Oklahoma statutes provide that:
Unless at least one of the statutory aggravating circumstances enumerated in this act is so found or if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances, the death penalty shall not be imposed.
Okla.Stat. tit. 21, § 701.11 (1991) (footnote omitted).