source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    RUTLEDGE v. UNITED STATES
    No. 94-8769.
    Argued November 27, 1995
    Decided March 27, 1996

      Stevens, J., delivered the opinion for a unanimous Court.

      Barry Levenstam argued the cause for petitioner. With him on the briefs were Jerold S. Solovy, Avidan J. Stern, and Jacob I. Corré.

      James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Richard A. Friedman.

   Justice Stevens

delivered the opinion of the Court.

A jury found petitioner guilty of participating in a conspiracy to distribute controlled substances in violation of 84 Stat. 1265, as amended, 21 U. S. C. § 846, and of conducting a continuing criminal enterprise (CCE) in violation of § 848. The “in concert” element of his CCE offense was based on the same agreement as the § 846 conspiracy. The question presented is whether it was therefore improper for the District Court to sentence him to concurrent life sentences on the two counts.

I

Petitioner organized and supervised a criminal enterprise that distributed cocaine in Warren County, Illinois, from 1988 until December 1990, when he was arrested by federal agents. He was charged with several offenses, of which only Count One, the CCE charge, and Count Two, the conspiracy charge, are relevant to the issue before us.

Count One alleged that during the period between early 1988 and late 1990, petitioner violated §848 by engaging in a CCE that consisted of a series of unlawful acts involving the distribution of cocaine. The count alleged that these actions were undertaken “in concert with at least five (5) other persons,” that petitioner supervised those other persons, and that he obtained substantial income from the continuing series of violations. App. 2-3.

.Count Two separately alleged that during the same period, petitioner violated 21 U. S. C. §846 by conspiring with four codefendants and others to engage in the unlawful distribution of cocaine. The count alleged that each of the conspirators had furthered the conspiracy by performing an overt act involving the delivery, purchase, or distribution of cocaine. App. 3-5.

After a 9-day trial, a jury found petitioner guilty on all counts. The trial court entered judgment of conviction on both Count One and Count Two and imposed a sentence of life imprisonment without possible release on each count, the sentences to be served concurrently. Id., at 8-10. Pursuant to 18 U. S. C. § 3013, petitioner was also ordered to pay a special assessment of $50 on each count.

On appeal, petitioner contended in a pro se supplemental brief that even though the life sentences were concurrent, entering both convictions and sentences impermissibly punished him twice for the same offense. The Court of Appeals for the Seventh Circuit accepted the premise of his argument, namely, that the conspiracy charge was a lesser included offense of the CCE charge. 40 F. 3d 879, 886 (1994). The Court of Appeals nonetheless affirmed his convictions and sentences. Relying on its earlier decision in United States v. Bond, 847 F. 2d 1233, 1238 (1988), and our decision in Jeffers v. United States, 432 U. S. 137 (1977), it held that convictions and concurrent sentences may be imposed for conspiracy and CCE, “provided the cumulative punishment does not exceed the maximum under the CCE act.” 40 F. 3d, at 886.

The decision of the Seventh Circuit is at odds with the practice of other Circuits. Most federal courts that have confronted the question hold that only one judgment should be entered when a defendant is found guilty on both a CCE count and a conspiracy count based on the same agreements. The Second and Third Circuits have adopted an intermediate position, allowing judgment to be entered on both counts but permitting only one sentence rather than the concurrent sen-fences allowed in the Seventh Circuit. We granted certio-rari to resolve the conflict. 515 U. S. 1157 (1995).

II

Courts may not prescribe] greater punishment than the legislature intended.” Missouri v. Hunter, 459 U. S. 359, 366 (1983); Brown v. Ohio, 432 U. S. 161, 165 (1977). In accord with principles rooted in common law and constitutional jurisprudence, see Ex parte Lange, 18 Wall. 163, 168-170 (1874), we presume that “where two statutory provisions proscribe the ‘same offense,’ ” a legislature does not intend to impose two punishments for that offense. Whalen v. United States, 445 U. S. 684, 691-692 (1980); Ball v. United States, 470 U. S. 856, 861 (1985).

For over half a century we have determined whether a defendant has been punished twice for the “same offense” by applying the rule set forth in Blockburger v. United States, 284 U. S. 299, 304 (1932). If “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the “same offense,” typically because one is a lesser included offense of the other.

In this case it is perfectly clear that the CCE offense requires proof of a number of elements that need not be established in a conspiracy case. The Blockburger test requires us to consider whether the converse is also true — whether the §846 conspiracy offense requires proof of any element that is not a part of the CCE offense. That question could be answered affirmatively only by assuming that while the §846 conspiracy requires proof of an actual agreement among the parties, the “in concert” element of the CCE offense might be satisfied by something less.

The Government advanced this precise argument in Jeffers v. United States, 432 U. S. 137 (1977), but it managed to persuade only one Justice. Id., at 158 (White, J., concurring). The position was rejected, to varying degrees, by the other eight. The four dissenters adopted, without comment, the proposition that conspiracy was a lesser included offense of CCE. See id., at 158, 159, n. 5. The remaining Justices joined Justice Blackmun’s plurality opinion which, while declining to hold that conspiracy was a lesser included offense, nonetheless explained why the Government’s argument was inconsistent with the statute’s text, with the way the words “in concert” have been used in other statutes, and with the legislative history of this statute. Based on its understanding of the “more likely” interpretation of § 848, the plurality assumed, arguendo, “that §848 does require proof of an agreement among the persons involved in the continuing criminal enterprise. So construed, § 846 is a lesser included offense of §848, because §848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements.” Id., at 149-150.

In the years since Jeffers was decided, the Courts of Appeals have also consistently rejected the Government’s interpretation of the “in concert” language of §848; they have concluded, without exception, that conspiracy is a lesser included offense of CCE. We think it is appropriate now to resolve the point definitively: For the reasons set forth in Jeffers, and particularly because the plain meaning of the phrase “in concert” signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a conspiracy that would also violate § 846. Because § 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the Blockburger test leads to the conclusion that conspiracy as defined in § 846 does not define a different offense from the CCE offense defined in § 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a § 846 conspiracy, it is appropriate to characterize § 846 as a lesser included offense of § 848.

h — I I — I I — I

The Government contends that even if conspiracy is a lesser included offense of CCE, the resulting presumption against multiple punishménts does not invalidate either of petitioner’s convictions. The second conviction, the Government first argues, may not amount to a punishment at all.

We begin by noting that 18 U. S. C. § 3013 requires a federal district court to impose a $50 special assessment for every conviction, and that such an assessment was imposed on both convictions in this case. As long as § 3013 stands, a second conviction will amount to a second punishment. Cf. Ray v. United States, 481 U. S. 736, 737 (1987) (per curiam) (presence of $50 assessment precludes application of “concurrent sentence doctrine”). The Government urges us not to rely on the assessment, however, pointing out that petitioner did not challenge it below, and noting that the question presented “presupposes” fully concurrent sentences. Brief for United States 7, n. 1.

If we ignore the assessment as the Government requests, the force of its argument would nonetheless be limited by our decision in Ball v. United States, 470 U. S. 856 (1985). There, we concluded that Congress did not intend to allow punishment for both illegally “receiving” and illegally “possessing” a firearm. Id., at 861-864. In light of that conclusion, we held that “the only remedy consistent with the congressional intent is for the District Court... to exercise its discretion to vacate one of the underlying convictions” as well as the concurrent sentence based upon it. Id., at 864. We explained further:

“The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U. S. 784, 790-791 (1969); Sibron v. New York, 392 U. S. 40, 54-56 (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.” Id., at 864-865.

Under Ball, the collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.

The Government suggests, however, that petitioner will never be exposed to collateral consequences like those described in Ball because he is subject to multiple life sentences without possibility of release. We need not conclusively resolve the matter, for there is no doubt that the second conviction carried with it, at very least, a $50 assessment. Although petitioner did not challenge the assessment below, 18 U. S. C. § 3013 required the District Court to impose it, and the assessment was therefore as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball would be. As a result, the conviction amounts to cumulative punishment not authorized by Congress.

IV

The Government further argues that even if the second conviction amounts to punishment, the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that it intended to allow courts to impose them. Hunter, 459 U. S., at 866 (citing Whalen, 445 U. S., at 691-692); Garrett v. United States, 471 U. S. 773, 779 (1985) (allowing multiple punishment in light of Congress’ “plainly expressed” view). The Government submits that such clear intent can be found here.

The Government finds support for its position in this Court’s judgment in Jeffers because that judgment allowed convictions under both §§846 and 848 to stand. Those convictions, however, had been entered in separate trials and our review only addressed the conviction under §848. The Court affirmed that conviction not because anyone on the Court suggested that Congress had intended to authorize dual convictions for the same offense, but rather because the four-justice plurality decided that Jeffers had waived any right to object to Jeffers’ prosecution for that conviction, see Jeffers, 432 U. S., at 152-154, and because Justice White believed that the two prosecutions were for different offenses.

The sole ground for Justice White’s critical fifth vote to affirm the judgment was his belief, set forth in a single short paragraph, that conspiracy was not a lesser included offense of CCE. Id., at 158 (opinion concurring in judgment in part and dissenting in part). In Part II of this opinion we have rejected that view. Accordingly, even if we could infer that the plurality had silently reached the rather bizarre conclusion that Congress intended to allow dual convictions but to preclude other multiple punishments, only four Justices would have supported it, with four others explicitly disagreeing. As to this issue, then, the judgment amounts at best to nothing more than an unexplained affirmance by an equally divided court — a judgment not entitled to precedential weight no matter what reasoning may have supported it. See Neil v. Biggers, 409 U. S. 188, 192 (1972). The more important message conveyed by Jeffers is found not in the bare judgment, but in the plurality’s conclusion, joined by the four dissenters, that CCE and conspiracy are insufficiently distinct to justify a finding that Congress intended to allow punishments for both when they rest on the same activity.

V

Finally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a “backup” conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether — even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20-22. We find the argument unpersuasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger.

In Tinder v. United States, 345 U. S. 565, 570 (1953), the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor conviction. Exercising our “power to do justice as the case requires” pursuant to 28 U. S. C. § 2106, we ordered the District Court to correct the sentence without vacating the underlying conviction. Relying on Tinder and the practice in “state courts, including courts governed by statutes virtually the same as Section 2106,” the Court of Appeals for the District of Columbia Circuit later decided that its “power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in the verdict.” Austin v. United States, 382 F. 2d 129, 140, 141-143 (1967).

Consistent with the views expressed by the District of Columbia Circuit, federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice ¶ 31.03[5], and n. 54 (2d ed. 1995); United States v. Ward, 37 F. 3d 243, 251 (CA6 1994) (after finding insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied, 514 U. S. 1030 (1995); United States v. Silvers, 888 F. Supp. 1289, 1306-1309 (ND Md. 1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such a practice with approval. Morris v. Mathews, 475 U. S. 237, 246-247 (1986) (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that “but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been different”). See also Jones v. Thomas, 491 U. S. 376, 384-385, n. 3 (1989) (citing Morris).

There is no need for us now to consider the precise limits on the appellate courts’ power to substitute a conviction on a lesser offense for an erroneous conviction of a greater offense. We need only note that the concern motivating the Government in asking us to endorse either the Seventh Circuit’s practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit’s practice of entering concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary to impose multiple convictions, and we see no reason why Congress, faced with the same problem, would consider it necessary to deviate from the traditional rule.

VI

A guilty verdict on a §848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of §846; conspiracy is therefore a lesser included offense of CCE. Because the Government’s arguments have not persuaded us otherwise, we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, “[o]ne of [petitioner’s] convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense” and must be vacated. Ball, 470 U. S., at 864.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Section 848(c) provides:
      “(c) 'Continuing criminal enterprise’ defined
      “For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—

        “(1) he violates any provision of this subchapter or subehapter II of this chapter the punishment for which is a felony, and
      “(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
      “(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
      “(B) from which such person obtains substantial income or resources.” 21 U. S. C. § 848(c).

       The alleged unlawful acts included a series of cocaine transactions in violation of § 841(a) and the same conspiracy in violation of § 846 that was charged in Count Two.

       “§ 846. Attempt and conspiracy
      “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U. S. C. §846.

       See, e. g., United States v. Rivera-Martinez, 931 F. 2d 148, 153 (CA1), cert. denied, 502 U. S. 862 (1991); United States v. Butler, 885 F. 2d 195, 202 (CA4 1989); United States v. Neal, 27 F. 3d 1035, 1054 (CA5 1994), cert. denied, 513 U. S. 1179 (1995); United States v. Paulino, 935 F. 2d 739, 751 (CA6 1991), cert. denied, 502 U. S. 1036 (1992); United States v. Possick, 849 F. 2d 332, 341 (CA8 1988); United States v. Hernandez-Escarsega, 886 F. 2d 1560, 1582 (CA9 1989), cert. denied, 497 U. S. 1003 (1990); United States v. Stallings, 810 F. 2d 973, 976 (CA10 1989); United States v. Cruz, 805 F. 2d 1464, 1479 (CA11 1986), cert. denied, 481 U. S. 1006 (1987); United States v. Anderson, 39 F. 3d 331, 357 (CADC 1994), rev’d on other grounds, 59 F. 3d 1323 (CADC 1995) (en banc).

        United States v. Aiello, 771 F. 2d 621, 634 (CA2 1985); United States v. Fernandez, 916 F. 2d 125, 128-129 (CA3 1990), cert. denied, 500 U. S. 948 (1991).

       See, e. g., Ball v. United States, 470 U. S. 856, 861-864 (1985) (concluding that multiple prosecutions were barred because statutes directed at “receipt” and “possession” of a firearm amounted to the “same offense,” in that proof of receipt “necessarily ” included proof of possession); Whalen v. United States, 445 U. S. 684, 691-695 (1980) (concluding that two punishments could not be imposed because rape and felony murder predicated on the rape were the “same offense”); Brown v. Ohio, 432 U. S. 161, 167-168 (1977) (in multiple proceedings context, applying Blockburger
        v. United States, 284 U. S. 299 (1932), to confirm state-court conclusion that offense of “joyriding” was a lesser included offense of auto theft).

       The defendant must, for example, commit a series of substantive violations, be a leader of the criminal enterprise, and derive substantial income from it. The Government need not prove any of those elements to establish a conspiracy in violation of § 846. Even the “in concert” element of the CCE offense is broader than any requirement in §846 because it requires at least five participants, while a conspiracy requires only two.

       In Jeffers, we considered whether the Government could prosecute the defendant under §848 even though he had previously been convicted of § 846 conspiracy on the basis of the same agreements. The Government argued that the multiple prosecution was permissible because the crimes were not the “same offense.” “The Government’s position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase ‘in concert with.’ If five ‘innocent dupes’ each separately acted ‘in concert with’ the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.” 432 U. S., at 147. The Government relied on Iannelli v. United States, 420 U. S. 770 (1975), in which we construed 18 U. S. C. § 1955 as not requiring proof of conspiracy. As Justice Blackmun pointed out, however, the language of § 1955 was significantly different from § 848 in that it omitted the words “in concert” and left open “the possibility that the five persons ‘involved’ in the gambling operation might not be acting together.” 432 U. S., at 147-148.

       The plurality did not need to hold that conspiracy was a lesser included offense because it found that even if it was, the petitioner waived whatever right he may have had to object to the second prosecution under §848 when he opposed the Government’s motion, brought before the first trial, to consolidate the proceedings. Id,., at 149-150, 153-154.

       The language of § 848 “restricts the definition of the crime to a continuing series of violations undertaken by the accused ‘in concert with five or more other persons.’” Id., at 148. As a result, “a conviction [under §848] would be impossible unless concerted activity were present. . . . Even if §848 were read to require individual agreements between the leader ... and each of the other five necessary participants, enough would be shown to prove a conspiracy.” Ibid.

      Furthermore, “[w]hen the phrase ‘in concert’ has been used in other statutes, it has generally connoted cooperative action and agreement. . .. This suggests that Congress intended the same words to have the same meaning in §848. . . . Since the word ‘concert’ commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned.” Id., at 149, n. 14 (citations omitted); see 3 Oxford English Dictionary 658 (2d ed. 1989) (defining “concert” as “Agreement of two or more persons or parties in a plan, design, or enterprise; union formed by such mutual agreement”; “especially] in phrase in concert”); Webster’s Third New International Dictionary 470 (1981) (defining “concert” as “agreement in a design or plan: union formed by mutual communication of opinions and views: accordance in a scheme”). Thus, “[i]n the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word ‘concert’ to have its common meaning of agreement in a design or plan.” Jeffers, 432 U. S., at 148-149.

       See, e. g., Rivera-Martinez, 931 F. 2d, at 152 (CA1); Aiello, 771 F. 2d, at 633 (CA2); Neal, 27 F. 3d, at 1054 (CA5); United States v. Chambers, 944 F. 2d 1253, 1268 (CA6 1991), cert. denied, 502 U. S. 1112, sub nom. Lucas v. United States, 503 U. S. 989 (1992); 40 F. 3d 879, 886 (CA7 1994) (case below); Possick, 849 F. 2d, at 341 (CA8); Hernandez-Escarsega, 886 F. 2d, at 1582 (CA9); Stallings, 810 F 2d, at 975 (CA10); United States v. Graziano, 710 F. 2d 691, 699 (CA11 1983).

        Garrett v. United States, 471 U. S. 773, 794-795 (1985), is not to the contrary. There, we affirmed the defendant’s prosecution for a CCE violation even though he had previously pleaded guilty to a predicate crime of importing marijuana. Ibid. That holding, however, merely adhered to our understanding that legislatures have traditionally perceived a qualitative difference between conspiracy-like crimes and the substantive offenses upon which they are predicated. See, e. g., United States v. Felix, 503 U. S. 378, 389-390 (1992) (allowing prosecution for conspiracy after petitioner was convicted of underlying substantive offense, and citing Garrett as a similar case). No such difference is present here. In contrast to the crimes involved in Garrett, this case involves two conspiracy-like offenses directed at largely identical conduct. Jeffers v. United States, 432 U. S., at 157; Garrett, 471 U. S., at 794 (“[T]he plurality [in Jeffers] reasonably concluded that the dangers posed by a conspiracy and a CCE were similar and thus there would be little purpose in cumulating the penalties”).

       Indeed, the parties insisted that the ease did not involve multiple punishment concerns, Jeffers, 432 U. S., at 154, and n. 23, and the Government did not contend that Congress intended to authorize the imposition of dual punishments. Because neither the Court nor the parties addressed the issue, Jeffers is a singularly unlikely source for a holding that Congress clearly authorized multiple convictions. Cf. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952).

       The Government suggests that convictions are authorized for both §§846 and 848 because they are different sections of the United States Code. Brief for United States 16. This does not rise to the level of the clear statement necessary for us to conclude that despite the identity of the statutory elements, Congress intended to allow multiple punishments. After all, we concluded in Ball that the statutes at issue did not authorize separate convictions, and they were even more distant in the Code. See 470 U. S., at 863-864 (discussing 18 U. S. C. § 922(h) and 18 U. S. C. App. § 1202(a) (1984)). If anything, the proximity of §§ 846 and 848 indicates that Congress understood them to be directed to similar, rather than separate, evils. Cf. Albernaz v. United States, 450 U. S. 333, 343 (1981).
      The Government further discerns congressional intent to allow multiple punishment from “significant differences” between Ball and this case. Brief for United States 19-24. None of its arguments, however, demonstrates that Congress “specially authorized” convictions for both the greater and lesser included offenses we address today. Whalen, 445 U. S., at 693. The Government suggests, for example, that the statutes in Ball were directed at virtually identical activity, while CCE and conspiracy are not. As we have already concluded, however, every proof of a CCE will demonstrate a conspiracy based on the same facts. That overlap is enough to conclude, absent more, that Congress did not intend to allow punishments for both.

       The Court of Appeals used this same power in Allison v. United States, 409 F. 2d 445 (CADC 1969), but noted: “[T]he circumstances in which such authority may be exercised are limited. It must be clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of which appellant was convicted, (2) that such evidence sufficiently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused.” Id., at 450-451.

       Indeed, because of our holding today, problems like the one presented in this case are unlikely to arise in the future. A jury is generally instructed not to return a verdict on a lesser included offense once it has found the defendant guilty of the greater offense. See, e. g., Seventh Circuit Pattern Criminal Jury Instruction 2.03, in 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions, p. 7-7 (1991).

       In certain circumstances, it may be that the Government will investigate and prosecute an individual for one or more § 846 conspiracies without being aware of facts that would justify charging a defendant with a violation of § 848 as well. Moreover, a lesser included § 846 conspiracy may not always be coterminous with the larger CCE. Because neither instance is true here, we need not explore the consequences of our holding today for purposes of the successive prosecution strand of the Double Jeopardy Clause, see Diaz v. United States, 223 U. S. 442, 448-449 (1912); Brown v. Ohio, 432 U. S., at 169, n. 7; see also Garrett, 471 U. S., at 786-793, nor need we address how prior convictions for lesser included §846 offenses should be handled for purposes of entering judgment if the later §848 conviction is obtained but then set aside.


author: Justice Scalia

text:
    O’CONNOR v. CONSOLIDATED COIN CATERERS CORP.
    No. 95-354.
    Argued February 27, 1996
    Decided April 1, 1996
    Scalia, J., delivered the opinion for a unanimous Court.

      George Daly argued the cause for petitioner. With him on the briefs were Paul Alan Levy and Alan B. Morrison.

      Paul R. Q. Wolf son argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, C. Gregory Stewart, Gwendolyn Young Reams, Lorraine C. Davis, and Barbara L. Sloan.

      James B. Spears, Jr., argued the cause for respondent. With him on the brief were Jacob J. Modla and Robert S. Phifer.

        Steven S. Zaleznick and Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Tarra DeShields-Minnis and Andrew H. Baida, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, M. Jane Brady of Delaware, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Mark Barnett of South Dakota, and W. A. Drew Edmond-son of Oklahoma; for the Chamber of Commerce of the United States by Marshall B. Babson, Stanley R. Strauss, Sue J. Henry, Stephen A. Bokat, Robin S. Conrad, and Mona C. Zeiberg; for the Equal Employment Advisory Council by Douglas S. McDowell; and for the New England Legal Foundation by Steven S. Ostrach and Cynthia L. Amara.

        Jack L. Whitacre filed a brief for the National Retail Federation as amicus curiae.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether a plaintiff alleging that he was discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., must show that he was replaced by someone outside the age group protected by the ADEA to make out a prima facie case under the framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).

Petitioner James O’Connor was employed by respondent Consolidated Coin Caterers Corporation from 1978 until August 10, 1990, when, at age 56, he was fired. Claiming that he had been dismissed because of his age in violation of the ADEA, petitioner brought suit in the United States District Court for the Western District of North Carolina. After discovery, the District Court granted respondent’s motion for summary judgment, 829 F. Supp. 155 (1993), and petitioner appealed. The Court of Appeals for the Fourth Circuit stated that petitioner could establish a prima facie case under McDonnell Douglas only if he could prove that (1) he was in the age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time of his discharge or demotion, he was performing his job at a level that met his employer’s legitimate expectations; and (4) following his discharge or demotion, he was replaced by someone of comparable qualifications outside the protected class. Since petitioner’s replacement was 40 years old, the Court of Appeals concluded that the last element of the prima facie case had not been made out. 56 F. 3d 542, 546 (1995). Finding that petitioner’s claim could not survive a motion for summary judgment without benefit of the McDonnell Douglas presumption (i. e., “under the ordinary standards of proof used in civil cases,” 56 F. 3d, at 548), the Court of Appeals affirmed the judgment of dismissal. We granted O’Connor’s petition for certiorari. 516 U. S. 973 (1995).

In McDonnell Douglas, we “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases.” St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 506 (1993). We held that a plaintiff alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., could establish a prima facie case by showing “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the] complainant’s qualifications.” McDonnell Douglas, 411 U. S., at 802. Once the plaintiff has met this initial burden, the burden of production shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Ibid. If the trier of fact finds that the elements of the prima facie case are supported by a preponderance of the evidence and the employer remains silent, the court must enter judgment for the plaintiff. St. Mary’s Honor, Center, supra, at 509-510, and n. 3; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981).

In assessing claims of age discrimination brought under the ADEA, the Fourth Circuit, like others, has applied some variant of the basic evidentiary framework set forth in McDonnell Douglas. We have never had occasion to decide whether that application of the Title VII rule to the ADEA context is correct, but since the parties do not contest that point, we shall assume it. Cf. St. Mary’s Honor Center, supra, at 506, n. 1 (assuming that “the McDonnell Douglas framework is fully applicable to racial-discrimination-in-employment claims under 42 U. S. C. § 1983”). On that assumption, the question presented for our determination is what elements must be shown in an ADEA case to establish the prima facie case that triggers the employer’s burden of production.

As the very name “prima facie case” suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a “legally mandatory, rebuttable presumption,” Burdine, supra, at 254, n. 7. The element of replacement by someone under 40 fails this requirement. The discrimination prohibited by the ADEA is discrimination “because of [an] individual’s age,” 29 U. S. C. § 623(a)(1), though the prohibition is “limited to individuals who are at least 40 years of age,” § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to “40 or over” discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. Because it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.

Perhaps some courts have been induced to adopt the principle urged by respondent in orden to avoid creating a prima facie case on the basis of very thin evidence — for example, the replacement of a 68-year-old by a 65-year-old. While the respondent’s principle theoretically permits such thin evidence (consider the example above of a 40-year-old replaced by a 39-year-old), as a practical matter it will rarely do so, since the vast majority of age-discrimination claims come from older employees. In our view, however, the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires “evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion . . . .” Teamsters v. United States, 431 U. S. 324, 358 (1977) (emphasis added). In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.

The judgment of the Fourth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

       The court also concluded that even under a modified version of the McDonnell Douglas prima facie standard which the Fourth Circuit applies to reduction-in-foree eases, see Mitchell v. Data General Corp., 12 F. 3d 1310, 1315 (1993), petitioner could not prevail. We limit our review to the Fourth Circuit’s treatment of this case as a non-reduction-in-force case.

       See, e. g., Roper v. Peabody Coal Co., 47 F. 3d 925, 926-927 (CA7 1995); Rinehart v. Independence, 35 F. 3d 1263, 1265 (CA8 1994), cert. denied, 514 U. S. 1096 (1995); Seman v. Coplay Cement Co., 26 F. 3d 428, 432, n. 7 (CA3 1994); Roush v. RFC Nat. Mgt. Co., 10 F. 3d 392, 396 (CA6 1993), cert. denied, 513 U. S. 808 (1994); Lindsey v. Prive Corp., 987 F. 2d 324, 326, n. 5 (CA5 1993); Goldstein v. Manhattan Industries, Inc., 758 F. 2d 1435, 1442 (CA11), cert. denied, 474 U. S. 1005 (1985); Haskell v. Kaman Corp., 743 F. 2d 113, 119, and n. 1 (CA2 1984); Cuddy v. Carmen, 694 F. 2d 853, 856-857 (CADC 1982); Douglas v. Anderson, 656 F. 2d 528, 531-532 (CA9 1981); Loeb v. Textron, Inc., 600 F. 2d 1003, 1014-1016 (CA1 1979); Schwager v. Sun Oil Co. of Pa., 591 F. 2d 58, 60-61 (CA10 1979).


author: Justice Breyer Chief Justice Rehnquist,

text:
    LONCHAR v. THOMAS, WARDEN
    No. 95-5015.
    Argued December 4, 1995
    Decided April 1, 1996

      Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which Scalia, Kennedy, and Thomas, JJ., joined, post, p. 334.

      Donald B. Verrilli, Jr., argued the cause for petitioner. With him on the briefs were Paul M. Smith and Clive A. Stafford Smith.

      Mary Beth Westmoreland, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, and Susan V. Boleyn, Senior Assistant Attorney General.
   Justice Breyer

delivered the opinion of the Court.

This case asks us to decide whether a federal court may dismiss a first federal habeas petition for general “equitable” reasons beyond those embodied in the relevant statutes, Federal Habeas Corpus Rules, and prior precedents. We decide that the Court of Appeals erred in doing so in this case. The primary “equitable” consideration favoring dismissal of the “eleventh hour” petition before us is serious delay. A Federal Habeas Corpus Rule deals specifically with delay. See 28 U. S. C. § 2254 Rule 9(a) (permitting courts to dismiss a habeas petition when “it appears that the state ... has been prejudiced in its ability to respond ... by delay in its filing”). And, in our view, this Rule, not some general “equitable” power to create exceptions to the Rule, should have determined whether or not the petition’s dismissal was appropriate.

I

Petitioner Larry Lonchar was sentenced to death for murder nine years ago. He filed this “eleventh hour” petition for habeas corpus — his first federal habeas corpus petition— on June 28, 1995, the day of his scheduled execution. To understand the procedural significance of this petition, the nature of the delay here at issue, and other relevant special features of this case, we must consider the petition in the context of earlier proceedings, which, for ease of exposition, we divide into five stages:

Stage One: Trial, Appeal, Execution Date: 1987-1990. In 1987, Lonchar was convicted in state court for murdering three people and sentenced to death by electrocution. A mandatory state-court appeal led to affirmance of the conviction and sentence in 1988. The trial judge then issued a death warrant for the week of March 23, 1990. Throughout these proceedings Lonchar said he wanted to die and refused to cooperate with his lawyer or to attend his trial. He also attempted (unsuccessfully) to waive his mandatory appeal, declined to authorize any collateral attacks on his conviction or sentence, and wrote the trial judge asking for an execution date.

Stage Two: Sister’s “Next Friend” Habeas: March 1990-February 1993. Two days before the scheduled execution, Lonchar’s sister, Chris Kellog, filed a “next friend” habeas petition in state court, claiming Lonchar was incompetent. Lonchar opposed the action and eventually the state and federal courts, at trial and appellate levels, held that Lonchar was competent and dismissed the petition. The state courts again issued a death warrant, this time for the week of February 24, 1993.

Stage Three: Lonchar’s own State Habeas: February 1993-May 1995. After Lonchar’s lawyer told him that his brother, Milan, was threatening to kill himself because of Lonchar’s execution, Lonchar authorized a habeas petition in state court and obtained a stay of execution. He subsequently changed his mind and told the judge he did not want to proceed. Although his lawyers objected that Lonchar was incompetent to make this decision, the judge dismissed the petition without prejudice. A death warrant was issued for the week of June 23, 1995.

Stage Four: Brother’s “Next Friend” Habeas: June 20-June 23, 1995. Three days before the scheduled execution, Lonchar’s brother, Milan, filed another “next friend” habeas petition in state court. Lonchar again opposed it. Within three days, Milan’s petition met the same fate as his sister’s earlier petition. That is to say, federal and state courts, at trial and appellate levels, all found Lonchar competent and denied the petition.

Stage Five: Lonchar’s Current Habeas: June 23, 1995-Present. Immediately thereafter, after discussions with his lawyers, Lonchar filed another state habeas petition containing 22 claims, including one that challenged the method of execution. He told the state-court judge that he wished to pursue each of the 22 claims, but was litigating them only to delay his execution, with the hope that the State would change the execution method to lethal injection so he could donate his organs. The state courts stayed the execution briefly, and then, two days later, denied the petition. Lonchar immediately filed his first federal habeas petition, which set forth the same 22 claims.

The State asked that Lonchar’s federal petition be dismissed, stressing what it called Lonchar’s “inequitable conduct” in waiting almost six years, and until the last minute, to file a federal habeas petition. The District Court held that this could not constitute an independent basis for rejecting the petition. In its view, Habeas Corpus Rule 9, not some generalized equitable authority to dismiss, governed the case. And, it held, Rule 9’s authority to dismiss for “abuse of the writ” applied to “second or successive” habeas petitions, not to a first petition, such as Lonchar’s. See Ha-beas Corpus Rule 9(b) (“A second or successive petition may be dismissed if . . . the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ”) (emphasis added). The District Court therefore granted a stay to permit time for consideration of the State’s other grounds in its motion to dismiss.

The next day the Court of Appeals for the Eleventh Circuit vacated the stay. 58 F. 3d 590 (1995). It pointed out that the District Court had “based its holding exclusively on Rule 9.” Id., at 592. It held that “equitable doctrines independent of Rule 9” applied, relying chiefly on this Court’s per curiam order in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992). 58 F. 3d, at 593. And, setting aside the Rules and traditional habeas doctrines, the court concluded that, in the circumstances of this case, “Lonchar does not merit equitable relief.” Ibid.

As mentioned above, we granted certiorari in order to consider whether a federal court may, in such circumstances, dismiss a valid first habeas petition for “equitable reasons” other than reasons listed in federal statutes and Rules, or well established in this Court’s precedents.

II

We first discuss a preliminary matter. We have before us a Court of Appeals order that vacates a stay, not an order to dismiss the habeas petition. We believe, however, that this fact makes no difference. That is, the Court of Appeals order vacating the stay is lawful only if dismissal of the petition would have been lawful. By bringing about Lonchar’s execution, vacating the stay would prevent the courts from considering the petition’s merits, just as would its dismissal.

This Court has previously considered, in a slightly different context, whether a court may allow a first federal habeas petition to be mooted by an execution, even though the court lacked the authority to dispose of the petition on the merits. In Barefoot v. Estelle, 463 U. S. 880 (1983), the Court considered the proper standard for granting or denying a stay pending consideration of an appeal from a dismissal of a first federal habeas petition. The Court stated:

“When a certificate of probable cause is issued by the district court, as it was in this case, or later by the court of appeals, petitioner must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accordingly, a court of appeals, where necessary to prevent the case from becoming moot by the petitioner’s execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certificate of probable cause on his initial habeas appeal.” Id., at 893-894.

We believe that the same principle applies when a district court is faced with a request for a stay in a first federal habeas case: If the district court cannot dismiss the petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot. That is, if the district court lacks authority to directly dispose of the petition on the merits, it would abuse its discretion by attempting to achieve the same result indirectly by denying a stay. Of course, a district court is authorized to dismiss a petition summarily when “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court,” Habeas Corpus Rule 4, just as a court of appeals is not required to address an appeal that fails to meet the certificate of probable cause standard of a “substantial showing of the denial of a federal right,” see Barefoot, 463 U. S., at 893-894. And, as is also true of consideration of appeals, a district court may, within the constraints of due process, expedite proceedings on the merits. Id., at 894-895.

In this case, Lonchar’s claims certainly seem substantial enough to prevent dismissal under Rule 4, and the State does not argue to the contrary. That being so, we believe that the District Court and Court of Appeals were correct to assume that Lonchar could not be denied a stay unless his petition was properly subject to dismissal. See App. 62, 63-64; 58 F. 3d, at 593.

The concurrence argues that the Court’s decision in Gomez v. United States Dist. Court for Northern Dist. of Cal., supra, displaced the rationale of Barefoot, relying particularly on the statement that a “court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” 503 U. S., at 654. The concurrence understands this statement to authorize denial of a stay, for generalized equitable reasons, in first federal habeas cases, even when the district court lacks authority to dismiss the petition on the merits. We do not believe this sentence, or the rest of the Court’s order in Gomez, supports this conclusion.

First, Gomez did not involve denial of a stay in a case in which the lower court had no authority to dismiss the petition. Instead, as the concurrence concedes, post, at 338, the case could have been dismissed as an “abuse of the writ.” See 503 U. S., at 653-654. Second, Gomez involved a fifth attempt to secure collateral review, not a first habeas petition. Barefoot indicated that stays in “[s]econd and successive federal habeas corpus petitions present a different issue,” since in such cases it is more likely that “‘a condemned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic,’ ” and because this danger is specially recognized and addressed in the Habeas Corpus Rules. Barefoot, supra, at 895. Finally, the concurrence’s reading of Gomez seriously conflicts with Barefoot’s well-settled treatment of first habeas petitions. We decline to adopt such a far-reaching interpretation of this per curiam order, especially since Gomez did not concern a first habeas petition, and since the Gomez order did not discuss (or even cite) Barefoot, much less explicitly repudiate its rationale.

III

We turn, then, to the main question: Could the Court of Appeals properly dismiss this first habeas petition for special ad hoc “equitable” reasons not encompassed within the framework of Rule 9? We conclude that it could not.

First, the history of the Great Writ of Habeas Corpus reveals, not individual judges dismissing writs for ad hoc reasons, but, rather, the gradual evolution of more formal judicial, statutory, or rules-based doctrines of law. See, e. g., McCleskey v. Zant, 499 U. S. 467, 479-489 (1991); Barefoot, supra, at 892; Kuhlmann v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion); Sanders v. United States, 373 U. S. 1, 15 (1963); Townsend v. Sain, 372 U. S. 293, 313 (1963). In earlier times, the courts followed comparatively simple rules, even occasionally disregarding complex procedural doctrines, such as res judicata, see McCleskey, supra, at 479, as they exercised the writ in light of its most basic purpose, avoiding serious abuses of power by a government, say a king’s imprisonment of an individual without referring the matter to a court. See, e. g., L. Yackle, Postconviction Remedies §4, pp. 9-11 (1981); W. Duker, A Constitutional History of Habeas Corpus 4-6 (1980); W. Church, A Treatise on the Writ of Habeas Corpus §§ 1-46, pp. 2-40 (2d ed. 1893). As the writ has evolved into an instrument that now demands not only conviction by a court of competent jurisdiction, see In re Coy, 127 U. S. 731, 756-758 (1888), but also application of basic constitutional doctrines of fairness, see Jones v. Cunningham, 371 U. S. 236, 243 (1963), Congress, the Rule writers, and the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that individual judges can freely exercise. Those principles seek to maintain the courts’ freedom to issue the writ, aptly described as the “highest safeguard of liberty,” Smith v. Bennett, 365 U. S. 708, 712 (1961), while at the same time avoiding serious, improper delay, expense, complexity, and interference with a State’s interest in the “finality” of its own legal processes. Withrow v. Williams, 507 U. S. 680, 698 (1993) (O’Connor, J., concurring in part and dissenting in part); McCleskey, supra, at 490-492; Reed v. Ross, 468 U. S. 1, 10 (1984). These legal principles are embodied in statutes, rules, precedents, and practices that control the writ’s exercise. Within constitutional constraints they reflect a balancing of objectives (sometimes controversial), which is normally for Congress to make, but which courts will make when Congress has not resolved the question. See Brecht v. Abrahamson, 507 U. S. 619, 632-633 (1993).

Second, the fact that the writ has been called an “equitable” remedy, see, e. g., Gomez, supra, at 653-654, does not authorize a court to ignore this body of statutes, rules, and precedents. “There is no such thing in the Law, as Writs of Grace and Favour issuing from the Judges.” Opinion on the Writ of Habeas Corpus, Wilm. 77, 87, 97 Eng. Rep. 29, 36 (1758) (Wilmot, J.). Rather, “courts of equity must be governed by rules and precedents no less than the courts of law.” Missouri v. Jenkins, 515 U. S. 70, 127 (1995) (Thomas, J., concurring). See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975); The Federalist No. 78, p. 528 (J. Cooke ed. 1961). As Selden pointed out so many years ago, the alternative is to use each equity chancellor’s conscience as a measure of equity, which alternative would be as arbitrary and uncertain as measuring distance by the length of each chancellor’s foot. See 1 J. Story, Commentaries on Equity Jurisprudence 16 (13th ed. 1886).

That is why this Court, in McCleskey, said that concern about habeas petition abuses has led to “a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” 499 U. S., at 489 (emphasis added). And it is why this Court, in McCleskey, also reaffirmed the importance, “ fin order to preclude individualized enforcement of the Constitution in different parts of the Nation,’ ” of “ ‘lay[ing] down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts.”’ Id., at 496 (quoting Brown v. Allen, 344 U. S. 443, 601-502 (1953) (opinion of Frankfurter, J.)).

After all, equitable rules that guide lower courts reduce uncertainty, avoid unfair surprise, minimize disparate treatment of similar cases, and thereby help all litigants, including the State, whose interests in “finality” such rules often further. See Barefoot, 463 U. S., at 892; Kuhlmann, supra, at 451; Townsend, supra, at 313. See also Coleman v. Thompson, 501 U. S. 722, 750 (1991) (barring consideration of claims procedurally defaulted in state court absent cause and prejudice or a fundamental miscarriage of justice); Teague v. Lane, 489 U. S. 288, 299-316 (1989) (plurality opinion) (barring from habeas proceedings federal claims based on certain “new rules” of constitutional law); Rose v. Lundy, 455 U. S. 509, 522 (1982) (“[A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims”).

And the arguments against ad hoc departure from settled rules would seem particularly strong when dismissal of a first habeas petition- is -at issue. Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty. See Ex parte Yerger, 8 Wall. 85, 95 (1869) (the writ “has been for centuries esteemed the best and only sufficient defence of personal freedom”); Withrow, supra, at 700 (O’Connor, J., concurring in part and dissenting in part) (decisions involving limitation of habeas relief “warrant restraint”). Even in the context of “second and successive” petitions — which pose a greater threat to the State’s interests in “finality” and are less likely to lead to the discovery of unconstitutional punishments — this Court has created careful rules for dismissal of petitions for abuse of the writ. See McCleskey, supra.

This is not to say that a district court has no discretion in dealing with first federal habeas petitions. The Habeas Corpus Rules themselves provide district courts with ample discretionary authority to tailor the proceedings to dispose quickly, efficiently, and fairly of first habeas petitions that lack substantial merit, while preserving more extensive proceedings for those petitions raising serious questions. For instance, as noted above, the Rules permit a district court to dismiss summarily a first petition without waiting for the State’s response if “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” Habeas Corpus Rule 4. Moreover, even if the petition cannot be dismissed under that standard, the district court is still authorized to “take such other action as the judge deems appropriate.” Ibid. The Advisory Committee’s Note makes clear that this provision was

“designed to afford the judge flexibility in a case where either dismissal or an order to answer may be inappropriate. For example, the judge may want to authorize the respondent to make a motion to dismiss based upon information furnished by respondent, which may show that petitioner’s claims have already been decided on the merits in a federal court; that petitioner has failed to exhaust state remedies; that the petitioner is not in custody within the meaning of 28 U. S. C. § 2254; or that a decision in the matter is pending in state court. In these situations, a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition. In other situations, the judge may want to consider a motion from respondent to make the petition more certain. Or the judge may want to dismiss some allegations in the petition, requiring the respondent to answer only those claims which appear to have some arguable merit.” 28 U. S. C., p. 478.

The Rules also afford the district court substantial discretion in the conduct of a case once an answer has been ordered. It may decide to order expansion of the record to facilitate a disposition on the merits without the need for an evidentiary hearing. Habeas Corpus Rule 7. Discovery is available only if “the judge in the exercise of his discretion and for good cause shown grants leave.” Habeas Corpus Rule 6(a). And the district court is afforded a degree of discretion in determining whether to hold an evidentiary hearing. See Habeas Corpus Rule 8(a); Townsend, 372 U. S., at 318; Keeney v. Tamayo-Reyes, 504 U. S. 1, 11-12 (1992). Thus, the district court is afforded substantial discretion to expedite proceedings, cf. Barefoot, supra, at 894-895, in order quickly to dispose of meritless first petitions while at the same time preserving the important right of those raising serious habeas questions to have their claims thoroughly considered by the district court.

Third, a specific federal Habeas Corpus Rule, Rule 9(a), directly addresses the primary factor — delay—that led the Court of Appeals to dismiss the petition for “equitable reasons.” That Rule says:

“Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.” (Emphasis added.)

The Rule applies because Lonchar’s petition is a “delayed petition.” And the language of the Rule requires, as a condition of dismissal, a finding of “prejudice,” which the District Court was not asked to, and did not, make. (Because the State specifically disavows reliance upon Rule 9(a), we do not consider what would constitute sufficient “prejudice” to justify application of the Rule in the context of a last-minute habeas petition.) Instead, it asked the Court of Appeals to develop an equitable rule under which a “petition may be dismissed” for “delay in its filing” without the prejudice precondition.

But the history of the Rule makes plain that the prejudice requirement represents a critical element in the balancing of interests undertaken by Congress and the framers of the Rule which courts may not undermine through the exercise of background equitable powers. See Bank of Nova Scotia v. United States, 487 U. S. 250, 255 (1988) (“The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked ‘because a court has elected to analyze the question under the supervisory power ’ ” (quoting United States v. Payner, 447 U. S. 727, 736 (1980)). The Advisory Committee’s Note indicates that the very maxim upon which the Court of Appeals relied as authority for acting outside the Rules — the equitable maxim that “the petitioner’s conduct may . . . disentitle him to relief,” 58 F. 3d, at 592 — was taken into account when the Rule’s framers drafted Rule 9(a) and included its prejudice requirement. See Advisory Committee’s Note on Habeas Corpus Rule 9, 28 U. S. C., p. 484. Moreover, Congress, when considering a draft of the Rule, see 28 U. S. C. § 2074, directly focused upon the prejudice requirement and rejected, by removing from the draft Rule, a provision that would have eased the burden of the prejudice requirement by presuming prejudice after a delay of five years. Compare Rules of Procedure: Communication from the Chief Justice of the United States Transmitting Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of Title 28, H. R. Doc. No. 94-464, pp. 38-39 (1976), with Act of Sept. 28,1976, Pub. L. 94-426, § 2(9), 90 Stat. 1335. See also H. R. Rep. No. 94-1471, p. 5 (1976) (“[I]t is unsound policy to require the defendant to overcome a presumption of prejudice”). Cf. McCarthy v. Madigan, 503 U. S. 140, 144 (1992) (Even in an area, such as exhaustion, where judges have considerable discretionary authority, “appropriate deference to Congress’ power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme”).

We recognize there is considerable debate about whether the present Rule properly balances the relevant competing interests. See, e. g., U. S. Judicial Conference, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal 6, 18-21 (1989) (hereinafter Powell Report) (suggesting a statute of limitations for habeas petitions); American Bar Association, Toward a More Just and Effective System of Review in State Death Penalty Cases 29-30 (1990) (hereinafter ABA Report) (same). But, to debate the present Rule’s effectiveness is to affirm, not to deny, its applicability. Moreover, that debate’s focus upon Congress also reveals the institutional inappropriateness of amending the Rule, in effect, through an ad hoc judicial exception, rather than through congressional legislation or through the formal rulemaking process. See Vasquez v. Hillery, 474 U. S. 254, 265 (1986) (“[Djespite many attempts in recent years, Congress has yet to create a statute of limitations for federal habeas corpus actions. We should not lightly create a new judicial rule ... to achieve the same end”) (citation omitted); Appendix to this opinion (listing more than 80 bills that have proposed a statute of limitations for federal habeas cases since Vasquez, none of which has been adopted).

Fourth, contrary to the Court of Appeals’ view, we do not believe that this Court, in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992), authorized ad hoc equitable departures from the Habeas Corpus Rules. The Court of Appeals relied heavily on the statement:

“Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a [42 U. S. C.] § 1983 action, Harris seeks an equitable remedy.” Id., at 653-654.

But, this statement, understood in context, does not mean that this Court authorized setting aside the Habeas Corpus Rules and refusing to consider a first habeas petition for generalized “equitable” reasons. As we explained above, Gomez was not a first habeas petition. Harris, after bringing four habeas petitions, argued that he still could raise a “method of execution” claim in a last-minute § 1983 action, to which habeas rules, like McCleskey’s, abuse of the writ doctrine, would not apply The quoted sentence simply says that these rules would apply, even if §1983 were also a proper vehicle for his “method of execution” claim, since Harris was still seeking equitable relief and the equitable rationale underlying McCleskey’s abuse of the writ doctrine — avoiding, among other things, “last-minute attempts to manipulate the judicial process,” 503 U. S., at 654; McCleskey, 499 U. S., at 484-485, 491-493 — would apply to a suit challenging the method of execution, regardless of the technical form of action. Gomez did not, and did not purport to, work a significant change in the law applicable to the dismissal of first habeas petitions.

Fifth, the fact that Lonchar filed his petition at the “eleventh hour” does not lead to a different conclusion. We recognize that the Court in Gomez said that “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” 503 U. S., at 654. And this Court has made similar statements in other cases. See, e. g., Sawyer v. Whitley, 505 U. S. 333, 341, n. 7 (1992) (judge may resolve doubts against petitioners who “delay their filings until the last minute with a view to obtaining a stay because the district court will lack time to give them the necessary consideration before the scheduled execution”); Herrera v. Collins, 506 U. S. 390, 425-426 (1993) (O’Connor, J., concurring).

These statements do not help the State, however, for they all involve “second or successive” habeas petitions. The Rules specifically authorize dismissal of those petitions for “abuse of the writ.” Habeas Corpus Rule 9(b). See also 28 U. S. C. § 2244(b) (authorizing dismissal when “the applicant has . . . deliberately withheld the newly asserted ground or otherwise abused the writ”) (emphasis added). McCleskey gives content to the notion of “abuse of the writ,” as do the cases just mentioned. These statements, therefore, reflect an effort to follow and to apply the Habeas Corpus Rules, not an effort to develop law outside the Rules.

Indeed, to try to devise some sensible way of supplementing first federal habeas petition rules with ad hoc equitable devices would prove difficult. As we discussed, supra, at 324, the interest in permitting federal habeas review of a first petition is quite strong. And, given the importance of a first federal habeas petition, it is particularly important that any rule that would deprive inmates of all access to the writ should be both clear and fair. As two prominent bodies charged with developing proposals for habeas law reform have pointed out, developing fair and effective rules to minimize the harms created by last-minute petitions in capital cases is quite complicated, requiring consideration of issues such as the State’s control over setting execution dates, the time needed to exhaust state remedies, the common practice of substituting specialized capital counsel for habeas, and the time needed by habeas counsel to investigate claims, some of which (such as ineffective assistance of counsel) often cannot be raised on direct appeal. See ABA Report 26-29, 114-134; id., at 29 (“In a system of review that employs artificial execution dates as a catalyst, there are many eleventh hours and many last minutes, because, if the petitioner does not seek a stay of execution at virtually every level, the execution is imminent”); Powell Report 1 (“ [Prisoners often cannot obtain qualified counsel until execution is imminent”). These bodies, consequently, have proposed a comprehensive set of interrelated changes, see ABA Report 5-39; Powell Report 5-7, as have recent legislative proposals. See, e.g., H. R. 3, 104th Cong., 1st Sess. (1995); H. R. 729, 104th Cong., 1st Sess. (1995); H. R. 2703,104th Cong., 1st Sess. (1995); S. 3,104th Cong., 1st Sess. (1995); S. 623, 104th Cong., 1st Sess. (1995); S. 735, 104th Cong., 1st Sess. (1995). This complexity offers a practical caution against a judicial attempt, outside the framework of the Habeas Corpus Rules, to fashion similar reforms concerning first federal habeas petitions.

Sixth, the special circumstances in this case — other than delay — do not warrant a different result. The earlier ha-beas petitions brought by Lonchar’s sister and brother are beside the point. Lonchar did not assert his claims in those proceedings, nor did he conspire with his siblings to delay his execution. To the contrary, he opposed their petitions and prevailed in his opposition. See App. 22, 35, 48. These “next friend” petitions neither aggravate nor mitigate Lonchar’s delay in filing his own petition during those six years.

Lonchar’s filing and later withdrawal of his own state habeas petition would seem similarly beside the point. At most, the assertion and withdrawal of that petition would create a potential ground for a state-law procedural bar to a second state petition, which, in certain circumstances, might also prevent litigation of similar claims in federal court. See Coleman, 501 U. S., at 729-732. The State (despite its apparent agreement to Lonchar’s withdrawal of the state petition “without prejudice,” see App. 34, 161-163) has asserted just such a bar. It is free to litigate the matter on remand.

Nor do we believe that Lonchar’s motive for filing this federal habeas petition can make a critical difference. Lonchar did say that he filed this petition to delay his execution with the hope that the State would change its execution method. But Lonchar’s petition also requested the traditional habeas relief of a new trial or resentencing, App. 362, and he told the District Court specifically that he had considered each and every claim and wanted the court to hear them. Normally courts will not look behind an action that states a valid legal claim on its face in order to try to determine the comparative weight a litigant places on various subjective reasons for bringing the claim. A valid antitrust complaint or environmental action, for example, does not suddenly become invalid simply because the litigant is subjectively indifferent about receiving the requested equitable relief, but instead primarily wants to please his or her family or obtain revenge. More importantly, litigation about a petitioner’s subjective motivations risks adding to the complexity of habeas litigation, asking a subjective question (about the petitioner’s true motives) that is often unanswerable and the very asking of which may encourage and reward the disingenuous. See Murray v. Carrier, 477 U. S. 478, 487 (1986) (rejecting a subjective test for determining “cause” for procedural default, in part because under such a rule “federal habeas courts would routinely be required to hold evidentiary hearings to determine what prompted counsel’s failure to raise the claim in question”).

In sum, we believe that this case should have been examined within the framework of the Habeas Corpus Rules and settled precedents, not according to generalized equitable considerations outside that framework. We, of course, express no view about the proper outcome of the application of the Rules.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

In the last 10 years, bills proposing a statute of limitations for federal habeas corpus petitions have been introduced every year in Congress, more than 80 bills in all. See S. 2301,99th Cong., 2d Sess. (1986); S. 2850,99th Cong., 2d Sess. (1986); H. R. 72,100th Cong., 1st Sess. (1987); H. R. 73,100th Cong., 1st Sess. (1987); H. R. 1333, 100th Cong., 1st Sess. (1987); H. R. 3777,100th Cong., 1st Sess. (1987); S. 260,100th Cong., 1st Sess. (1987); S. 1285,100th Cong., 1st Sess. (1987); S. 1970,100th Cong., 1st Sess. (1987); H. R. 5217,100th Cong., 2d Sess. (1988); H. R. 1090,101st Cong., 1st Sess. (1989); H. R. 1953, 101st Cong., 1st Sess. (1989); H. R. 2709, 101st Cong., 1st Sess. (1989); H. R. 3119, 101st Cong., 1st Sess. (1989); S. 88,101st Cong., 1st Sess. (1989); S. 271,101st Cong., 1st Sess. (1989); S. 1225, 101st Cong., 1st Sess. (1989); S. 1228, 101st Cong., 1st Sess. (1989); S. 1970,101st Cong., 1st Sess. (1989); S. 1971,101st Cong., 1st Sess. (1989); H. R. 3918,101st Cong., 2d Sess. (1990); H. R. 4079,101st Cong., 2d Sess. (1990); H. R. 4737, 101st Cong., 2d Sess. (1990); H. R. 4820, 101st Cong., 2d Sess. (1990); H. R. 5055,101st Cong., 2d Sess. (1990); H. R. 5269, 101st Cong., 2d Sess. (1990); S. 2245, 101st Cong., 2d Sess. (1990); S. 2695, 101st Cong., 2d Sess. (1990); H. R. 18, 102d Cong., 1st Sess. (1991); H. R. 365, 102d Cong., 1st Sess. (1991); H. R. 1400, 102d Cong., 1st Sess. (1991); H. R. 3371, 102d Cong., 1st Sess. (1991); S. 19, 102d Cong., 1st Sess. (1991); S. 148,102d Cong., 1st Sess. (1991); S. 149,102d Cong., 1st Sess. (1991); S. 620, 102d Cong., 1st Sess. (1991); S. 635, 102d Cong., 1st Sess. (1991); S. 1151, 102d Cong., 1st Sess. (1991); S. 1241, 102d Cong., 1st Sess. (1991); S. 1335, 102d Cong., 1st Sess. (1991); S. 2305, 102d Cong., 2d Sess. (1992); S. 3292, 102d Cong., 2d Sess. (1992); H. R. 2217, 103d Cong., 1st Sess. (1993); H. R. 2321,103d Cong., 1st Sess. (1993); H. R. 2847,103d Cong., 1st Sess. (1993); H. R. 2872,103d Cong., 1st Sess. (1993); H. R. 3131, 103d Cong., 1st Sess. (1993); H. R. 3315,103d Cong., 1st Sess. (1993); S. 8,103d Cong., 1st Sess. (1993); S. 38, 103d Cong., 1st Sess. (1993); S. 47, 103d Cong., 1st Sess. (1993); S. 1356,103d Cong., 1st Sess. (1993); S. 1441, 103d Cong., 1st Sess. (1993); S. 1488, 103d Cong., 1st Sess. (1993); S. 1607, 103d Cong., 1st Sess. (1993); S. 1657, 103d Cong., 1st Sess. (1993); H. R. 4018, 103d Cong., 2d Sess. (1994); H. R. 4055, 103d Cong., 2d Sess. (1994); H. R. 4079, 103d Cong., 2d Sess. (1994); H. R. 4092, 103d Cong., 2d Sess. (1994); H. R. 4197, 103d Cong., 2d Sess. (1994); H. R. 4848, 103d Cong., 2d Sess. (1994); H. R. 5008, 103d Cong., 2d Sess. (1994); H. R. 5134, 103d Cong., 2d Sess. (1994); S. 2389, 103d Cong., 2d Sess. (1994); H. R. 3, 104th Cong., 1st Sess. (1995); H. R. 729, 104th Cong., 1st Sess. (1995); H. R. 920, 104th Cong., 1st Sess. (1995); H. R. 2703, 104th Cong., 1st Sess. (1995); S. 3,104th Cong., 1st Sess. (1995); S. 623,104th Cong., 1st Sess. (1995); S. 735, 104th Cong., 1st Sess. (1995); S. 816, 104th Cong., 1st Sess. (1995).

Chief Justice Rehnquist,

with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, concurring in the judgment.

I agree with the Court that the judgment of the Court of Appeals should be reversed, but I am in sufficient disagreement with the Court’s reasoning to write separately. I disagree with the Court’s statement that “the Court of Appeals order vacating the stay is lawful only if dismissal of the petition would have been lawful.” Ante, at 319. This statement, I believe, misreads our opinion in Barefoot v. Estelle, 463 U. S. 880 (1983), and ignores our reasoning in Gomez v. United States Dist. Court for Northern Dish of Cal., 503 U. S. 653 (1992).

The order under review does not dispose of a petition for a writ of habeas corpus; it vacates a stay of execution. The Court dismisses this distinction as a “preliminary matter,” which “makes no difference,” because “the Court of Appeals order vacating the stay is lawful only if dismissal of the petition would have been lawful.” Ante, at 319. In my view, the fact that we are reviewing an order vacating a stay is anything but “preliminary.”

The Court is correct inasmuch as the underlying petition’s likelihood of success is one factor to be considered in determining whether a stay should be entered. See Hilton v. Braunskill, 481 U. S. 770, 776 (1987). Rule 9 of the Rules Governing § 2254 Cases sets forth the grounds upon which a habeas petition may be dismissed other than the merits. Under Rule 9(b), a petition may be dismissed if it is found to be successive or abusive. Under Rule 9(a) it may also be dismissed

“if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.” 28 U. S. C. § 2254 Rule 9(a).

In this case, there was no basis for denying a stay on the ground that petitioner’s habeas claims are without merit; for the purposes of considering the stay application, it is undisputed that those claims are substantial. Because the habeas petition was petitioner’s first, it would also have been inappropriate to deny a stay on the ground that the petition could have been dismissed under Rule 9(b). I agree with the majority, ante, at 326, that, on the record before us, the petition likewise could not have been dismissed under Rule 9(a), because the Rule’s elements were not satisfied. Although the District Court determined that petitioner engaged in delay, it made no determination that the delay prejudiced the State’s ability to respond to the petition, within the meaning of Rule 9(a), by depriving the State of adequate time to respond or otherwise.

However, an applicant’s likelihood of success is not the only consideration in determining whether he is entitled to a stay. See Hilton, supra, at 776. The Habeas Rules say little if anything about this determination, and understandably so. It must be remembered the statutes governing habeas corpus, 28 U. S. C. §§2241-2255, were enacted in 1948, before the writ developed into a vehicle for federal courts “to reexamine federal constitutional issues even after trial and review by a state,” Brown v. Allen, 344 U. S. 443, 459 (1953), and long before this Court declined to declare the death penalty unconstitutional, in Gregg v. Georgia, 428 U. S. 153 (1976), Proffitt v. Florida, 428 U. S. 242 (1976), and Jurek v. Texas, 428 U. S. 262 (1976). It would have been difficult for Congress to have anticipated the issues that arise in a system in which state death sentences are presumptively valid, but are “reexamined” in federal court before execution to consider constitutional challenges to the manner in which they were imposed.

In the typical noncapital habeas case, it is relatively easy to rule on an application to stay execution of a state sentence by consulting ordinary principles governing stays. Rarely, if ever, does a noncapital petitioner seek a stay of his sentence before the district court has passed on the merits of his petition. When a petitioner does make such a request, he usually has little chance of success on the merits, since he has been confined pursuant to a presumptively valid final judgment of conviction rendered by a state court. See 28 U. S. C. § 2254(d). If, after entertaining his petition, the district court awards the writ, the “stay equities” shift in favor of the petitioner, who will be enlarged unless the State can demonstrate that the equities counsel otherwise. Hilton, supra, at 774.

This easily managed system can be adapted to govern capital habeas cases, so long as the capital petitioner files his habeas petition sufficiently in advance of his execution date. If he files in a timely fashion, the district court may then consider the petition in due course, without in any way disturbing the sentence or execution date before ruling on the petition’s merits. But if, as in this case, the petitioner instead flies an “eleventh hour” federal habeas petition, the customary principles must be revised accordingly. The district court may feel that it simply does not have time before the date of execution to adequately consider the merits of petitioner’s claims, and will naturally be disposed, as the District Court was here, to enter a stay to enable it to do so. In so doing, the district court sets aside a scheduled state execution of sentence, imposed by a presumptively valid final state judgment of conviction, on the basis of a tentative assessment that the judgment violates a federal constitutional right. Unless the eleventh-hour nature of the petition is taken into account, the late filing may induce the federal court to disregard federal-state comity and “frustrate ... the States’ sovereign power to punish offenders,” Engle v. Isaac, 456 U. S. 107, 128 (1982), when such interference might have been avoided by timely filing. The customary principles must also be revised to account for an attempt by a petitioner to manipulate the district court into granting relief where relief is clearly precluded.

In Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992), this Court demonstrated how last-minute or manipulative uses of the stay power constitute equitable grounds which can justify the denial of an application for stay of a state-court order of execution. The Court vacated a stay of execution issued on behalf of Robert Alton Harris, a California prisoner, pending consideration of a 42 U. S. C. § 1983 action alleging that his method of execution violated the Eighth Amendment. See 503 U. S., at 653. Because Harris had not raised the Eighth Amendment claim in any of the four federal habeas corpus petitions he had filed over 10 years, the Court considered the § 1983 claim “an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991), to bar this successive claim for relief.” Ibid. We could have vacated the stay on the basis of the successive-petition bar alone, but we explicitly did not:

“Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State’s strong interest in proceeding with its judgment and Harris’ obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id., at 653-654 (citations omitted).

Our order confirms that “abusive delay” — waiting until the last minute to submit a claim that could have been submitted earlier — and “obvious attempts] at manipulation” — in that case, asking the court to exercise its equitable powers in defiance of a clearly applicable legal rule precluding relief on the merits — constitute equities to be considered in ruling on the prayer for relief. More important, because we explained that this misconduct constituted sufficient grounds to deny Harris’ stay application, “[ejven if” McCleskey did not bar his claim, we made clear that such abuse may tip the scales decisively against a stay applicant regardless of the applicant’s likelihood of success on the merits.

Gomez also confirms that a habeas petitioner’s misconduct in applying for a stay may disentitle him to the stay even if the petition is his first. The inequitable conduct Gomez criticized, abusive delay and manipulation, may be present in any stay application. In Gomez we did not equivocate when we said: “Equity must take into consideration [an] obvious attempt at manipulation. ... A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” 503 U. S., at 654 (citations omitted). It may be admitted that there would be a stronger presumption in favor of deciding the merits of a first-time petition than for a successive petition. The successive nature of a petition gives rise to an additional concern counseling against review of the merits: that the petitioner is frustrating the State’s- attempts to execute its judgment by exploiting, the fact that ordinary principles of res judicata do not apply in habeas corpus. McCleskey v. Zant, 499 U. S. 467, 479, 491-492 (1991). It does not follow, however, that because a first-time petitioner does not abuse the writ under Rule 9(b) he may never be found to have engaged in the misconduct we criticized in Gomez; it means only that misconduct by such a petitioner is less likely to result in a refusal to grant a stay in order to consider the merits of the petition.

The majority attempts to distinguish Gomez because the matter before the Court in that case was “not a first habeas petition.” Ante, at 321. This reading is wholly implausible, because the first paragraph of the Court’s order had already discussed the fact that Harris was not a first-time petitioner. If the paragraph about Harris’ misconduct in relation to his application, quoted above, had legal significance only if his petition was successive, it would have been superfluous.

To support its view that a stay must be granted if a first federal habeas petition is not dismissed, the Court relies on our decision in Barefoot v. Estelle, 463 U. S. 880 (1983). But Barefoot and the present case arose in different contexts. The question presented and decided in Barefoot only addressed how the merits of the habeas petition may determine whether the petitioner obtains a stay. Id., at 887 (announcing the Court was considering “the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner”); id., at 891 (affirming the denial of a stay because the Court of Appeals “ruled on the merits of [Barefoot’s] appeal”). The issue in the present case is quite different: whether a petitioner’s course of conduct in seeking the writ may be considered by the district court in deciding whether to grant a stay. To the extent that the Court’s reading of Barefoot depends on the belief that a decision on a first federal habeas petition is somehow necessary to validate a state conviction, the Court ignores Barefoot’s assertion to the contrary:

“The role of federal habeas proceedings ... is secondary and limited. Federal courts are not forums in which to relitigate state trials. . . . The procedures adopted to facilitate the orderly consideration and disposition of ha-beas petitions are not legal entitlements that a defendant has a right to pursue irrespective of the contribution these procedures make toward uncovering constitutional error.” Id., at 887-888.

And, contrary to the Court’s refusal to consider whether Barefoot’s “rationale” might brook a distinction between seasonable and eleventh-hour first habeas petitions, ante, at 321, our opinion warned that federal habeas corpus is not “a means by which a defendant is entitled to delay an execution indefinitely.” 463 U. S., at 887.

I nonetheless agree with the Court that the Court of Appeals erred in vacating the stay granted in this case by the District Court. The District Court did not consider whether petitioner’s conduct in court constituted misconduct so abusive that it disentitled him to a stay; it focused solely on the likelihood that petitioner’s habeas petition might be dismissed. Although the court determined that petitioner had “abused the writ,” it did not rely on this finding to deny a stay, correctly concluding that a first habeas petition may not be dismissed on the basis of abuse of the writ. App. 61-62. There was no determination that petitioner’s habeas petition could be dismissed under Rule 9(a). There is no other ground under which to dismiss a first petition other than the merits, and the Court of Appeals erred in concluding otherwise.

Although the findings supporting the District Court’s determination that petitioner abused the writ would go a long way toward supporting affirmance on the ground that petitioner’s misconduct disentitled him to a stay, reversal is still in order. I agree with the Court that petitioner’s conduct in the next-friend proceedings “neither aggravate nor mitigate Lonchar’s delay in filing.” Ante, at 331. Petitioner may not be blamed for having asserted his competence and his control over his habeas claims, because our case law required the District Court to establish as much. See Whitmore v. Arkansas, 495 U. S. 149, 165 (1990). Nor should he be blamed for his brother’s and sister’s desire to protect him, although it would be a different case if the record established that his relatives and he were colluding to stay his execution but avoid putting his claims before the court, so as to keep his options open in the future. Because the District Court erred in concluding that petitioner was culpable for the course of the next-friend proceedings and “[i]t is a paradigmatic abuse of discretion for a court to base its judgment on an erroneous view of the law,” Schlup v. Delo, 513 U. S. 298, 333 (1995) (O’Connor, J., concurring) (citing Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990)), the District Court necessarily abused its discretion in determining there was abuse of the writ. Reconsideration of this determination and the other equities of petitioner’s stay application is now in order. I therefore concur in the judgment of reversal.

       The Court is not concerned by this prospect because district courts have discretion to “order expansion of the record,” authorize discovery, decide “whether to hold an evidentiary hearing,” and generally “expedite proceedings.” Ante, at 326. These tools are useless, however, when a petitioner deliberately leaves the district court only one day to review a petition’s claims.

       Of course, there may be cases in which the eleventh-hour nature of the petition is attributable to the State’s scheduling the execution date before the petitioner may appeal the denial of postconviction relief in a timely manner, not to the petitioner’s deliberate refusal to seek relief. I am certain that district courts are capable of distinguishing between the two situations.

       The § 1983 action was a class-action suit, of which Harris was one member. I note that the claim that the Court declined to consider on the merits has enough merit for the class plaintiffs to have prevailed in district court and the court of appeals. Fierro v. Gomez, 77 F. 3d 301 (CA9 1996).


author: Per Curiam. Justice Stevens,

text:
    SHIEH v. KAKITA et al.
    No. 95-7587.
    Decided April 1, 1996

      Together with No. 95-7588, Shieh v. United States Court of Appeals for the Ninth Circuit, and No. 95-7589, Shieh v. Krieger et al., also on motion for leave to proceed informa pauperis to the same court.

   Per Curiam.

In these three petitions for certiorari, pro se petitioner Liang-Houh Shieh requests leave to proceed in forma pau-peris under Rule 39 of this Court. We deny his requests pursuant to Rule 39.8. Shieh is allowed until April 22, 1996, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court’s Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari from Shieh in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1.

Shieh has abused this Court’s certiorari process. In March 1996, we invoked Rule 39.8 to deny Shieh in forma pauperis status. See Shieh v. State Bar of California, 516 U. S. 1170. To date, Shieh has filed 10 petitions in this Court in less than three years. All have been both patently frivolous and denied without recorded dissent.

' We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992). Shieh’s abuse of the writ of cer-tiorari has been in noncriminal cases, and so we limit our sanction accordingly. The order will not prevent Shieh from petitioning to challenge criminal sanctions which might be imposed against him. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our certiorari process.

It is so ordered.

Justice Stevens,

dissenting.

For the reasons I have previously expressed, I respectfully dissent. See Jones v. ABC-TV, 516 U. S. 363, 364 (1996) (Stevens, J., dissenting); Attwood v. Singletary, 516 U. S. 297, 298 (1996) (Stevens, J., dissenting); Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Stevens, J., dissenting); Zatko v. California, 502 U. S. 16, 18 (1991) (Stevens, J., dissenting).


author: Per Curiam. Justice Ginsburg,

text:
    BOWERSOX, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. WILLIAMS
    No. A-828.
    Decided April 9, 1996
   Per Curiam.

Doyle J. Williams is scheduled to be executed by the State of Missouri on April 10, 1996. On January 11, 1996, a Federal District Court denied Williams’ third federal habeas corpus petition, finding all of Williams’ claims to be abusive, successive, or procedurally defaulted. On March 8,1996, the United States Court of Appeals for the Eighth Circuit entered a summary order staying Williams’ execution. The Court of Appeals scheduled oral argument for May 13, 1996, and resolved that the stay would remain in effect pending submission of the case and that court’s further order. The summary order gives no explanation for the Court of Appeals’ conclusion that oral argument is necessary or that entry of a stay was appropriate. The Court of Appeals denied a petition for rehearing en banc, and we now have before us an application to vacate the stay.

“A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are ‘substantial grounds upon which relief might be granted.”’ Delo v. Stokes, 495 U. S. 320, 321 (1990) (per curiam) (quoting Barefoot v. Estelle, 463 U. S. 880, 895 (1983)). Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is “ ‘particularly egregious’ ” to enter a stay absent substantial grounds for relief. Delo v. Blair, 509 U. S. 823 (1993) (citation omitted). On the record before us, we can discern no such grounds. We are persuaded by the report prepared by Magistrate Judge Hays, which meticulously addresses each of Williams’ claims and finds each to be abusive, successive, procedurally defaulted, or meritless, and by the District Court’s order adopting that report, in which the District Court also denied Williams’ dilatory motion to amend the habeas petition. The Court of Appeals abused its discretion by entering a stay on this record.

To the extent the Court of Appeals discerned substantial grounds for relief, it failed to reveal them in its summary order granting the stay. Although we hesitate to say that a court of appeals must, in every case, explain the basis for its entry of a stay, we see fit to remind the lower courts that entry of a stay without explanation is disfavored. Cf. Netherland, v. Tuggle, 515 U. S. 951 (1995) (per curiam). When a court of appeals fails to articulate its reasons for granting a stay, we lose the benefit of that court’s views and must resort to other portions of the record in evaluating whether to vacate the stay. In this case, the District Court’s careful treatment of Williams’ claims and the surface implausibility of those claims persuade us that the stay should not have been granted, and the Court of Appeals’ summary order does not convince us otherwise.

Accordingly, the application to vacate the stay of execution is. granted.

It is so ordered.

Justice Ginsburg,

with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

I would deny the application to vacate the stay of Williams’ execution. A diligent appellate court has granted a certificate of probable cause and scheduled this case for argument on May 13. Those actions signal to me the existence of reasons, not the absence of reasons, for granting a stay. At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ order. Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.