Cite as: 517 U. S. 314 (1996)
Rehnquist, C. J., concurring in judgment
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.
335
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