336
Rehnquist, C. J., concurring in judgment
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
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