Woodard v. Hutchins, 464 U.S. 377 (1984)

JUSTICE WHITE and JUSTICE STEVENS, dissenting.

We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure, it seems to us. It also seems to us that the Court’s opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ, and, for that reason, need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule.