*1 v. CALDERON THOMPSON No. December Argued April 97-215. 1997 Decided *3 Rehnquist, Court, in which Kennedy, opinion J., delivered Souter, J., filed Thomas, JJ., O’Connor, Scaua, joined. J., and C. and JX, Breyer, Ginsburg, Stevens, and in which dissenting opinion, joined, post, p. Attorney Deputy Gen- Supervising
Holly Wilkens, D. petitioner. herWith argued California, the cause for eral Attorney Lungren, General, E. Daniel were briefs Attorney General, Dane GeorgeWilliamson, Chief Assistant
541 Gillette, R. Senior Attorney Assistant General, and Pamela Supervising Ratner, A. Deputy Attorney General.
Gregory
Long argued
A.
respondent.
the cause for
With
him on the brief were Quin Denvir and Andrew S.
Love,
appointment of the Court,
Justice Thomas M. was convicted in California state rape Ginger court of the and murder of Fleisehli. More than years 15 years after the crime, 13 after convic- years 7 after petition tion, and filed his first for Appeals relief, federal habeas the United States Court of for denying issued its Ninth Circuit mandate writ of corpus. days habeas Two before scheduled ex- sitting Appeals, however, the ecution, Court of en bane, re- granted Thompson. called the mandate relief presents The case two issues: First, whether Court of Appeals’ recalling its order mandate violated U. S. C. 2244(b) (1994 § II), Supp. ed., as amended the Antiterror- (AEDPA), Penalty Death Act ism and Effective Pub. 104-132, §104, 1218; second, Stat. whether L. *Briefs of amici curiae were filed the State of urging reversal Ari- *4 Woods, Arizona, Paul J. McMur- Grant al. of by Attorney zona et General Howe, die, M. General, and Randall joined by Assistant Attorney Jane respective States as follows: M. for their Brady Attorneys General G. Idaho, Alan Lance of Butterworth Delaware, Florida, A of Robert of Kansas, Louisiana, Jeremiah Ieyoub J. Richard P. W. Carla Stovall of of Montana, Stenberg P. Mazurek of Don Missouri, Joseph, of Nixon of Ne- C. York, Papa Sue Del Dennis Vacco of New braska, Nevada, Frankie of W.A. Ohio, Easley Betty Montgomery D. Carolina, of of Michael F. North D. Fisher of Oklahoma, Michael Pennsylvania, of Drew Edmondson Dakota, Carolina, Mark W.Barnett of South Charles M. Condon of South Gregoire Washington, Christine 0. of Richard Utah, and Jan Graham Kent Cullen and for the Criminal Justice Foundation Virginia; Legal S. Scheidegger. Chikofsky Bergman
Edward M. Barbara E. and filed a brief for as amicus curiae Lawyers of Criminal National Defense Association urging affirmance. was
order an abuse court’s discretion. The recall precise the mandate was not controlled terms of thé AEDPA, order, which, hold, but this does not save the we grave was a abuse of discretion.
I A 20-year-old Ginger Thompson Fleischli, in met his victim, Laguna Fleischli shared a Beach stu- the summer 1981. apartment had Leiteh, dio with David with whom she an year, relationship. August sexual of that intermittent Thompson out moved and moved in. Fleischli took Fleischli Tracy up Leiteh, with the former wife David residence Leiteh. September p.m., 1981, at Fleischli and
On about 7:80 Tracy Thompson David Leiteh at a encountered and Leiteh pizza parlor. Tracy told Leiteh she was afraid Fleischli Thompson might kill if left alone with him. her she were Tracy together, group and went to a bar but David later joined p.m., departed. At 9:30 Afshin Kashani Leiteh soon Thompson them Fleischli, with and drinking both Thompson. smoking The trio went to second with hashish walking apartment around before to a.m. bar gone nearby liquor after a.m., At about 2 Fleischli Thompson buy soda, told he wanted to have Kashani store night. He Fleischli that assured sexual intercourse with “have” Fleischli after however, Kashani could Kashani, smuggle Thompson left for Thailand ref- and David Leiteh App. ugees drugs to the United States. back apartment, began Kashani returned to the Before Fleischli been left walking which seems have truck, to his forgotten way, he had his Kashani realized bar. On the local apartment, cigarettes. returned to where He appeared *5 nervous and him the door. met Thompson retrieved the made Kashani wait outside while returning looked cigarettes. truck, Kashani After to his nearby finding liquor Fleischli at a store went and, her, home.
Tracy apartment Leiteh visited the morn- ing September asking Lying, was. where Fleischli Thompson Sandpiper she Inn said had left the with Kashani Tracy night evening,- At party before. Leiteh again Thompson response, asked where Fleischli was. Thompson past saying tense, described Fleischli in the he day, Tracy missing had liked her. The next filed a Leiteh person’s report department. police with the local September police body
On buried found Fleischli’s in by Thompson apartment from the field miles shared rope body wrapped David The as well Leiteh. was as a sleeping bag apartment. and blanket, both taken from the tape, wrapped Fleischli’s was two towels, head with duet jacket. sheet, and five her She had been stabbed times right body head near ear. was bruised on the palms, right and left ankles, wrist; wrist was crushed. Fleischli’s shirt and bra cut had been down middle and pulled exposing restraining elbows, to her her arms and her jeans, had on no underwear, breasts. She unbuttoned but vaginal shoes, or socks. A swab semen consistent revealed type. with blood footprints body, two
Police found one smooth near the wavy pattern matching one with a a shoe worn David body Leiteh. Fibers from the blanket around the were iden- tical found to fibers the trunk of David Leiteh’s car. The rope body paint around the was with from the ear’s smeared apartment, carpet trunk. fibers matched in the Other which was stained with Fleischli’s blood. day body, police Thompson
On or around the found the and David Leiteh went to Leiteh returned to the Mexico. States, but United Mexican arrested authorities September 26,1981. with him. He had handcuffs When police questioned by to the United States, after his return apartment with claimed Fleischli had left his Ka- *6 544 night
shani the also the murder. He said Fleischli had though head, been stabbed in the this information had not yet public. He been made further claimed not have had engaged they Fleischli, sex with but later asserted had in consensual sex. lengthy procedural history
We next recount the case.
B Orange County Superior 1983, an On November Court jury Thompson first-degree convicted murder and rape jury special finding forcible made a Fleischli. The Ginger that homicide Lorraine Fleischli was an inten- “the killing personally by the tional committed defendant Thomas Thompson.” 86, 117, 23, P. Martin 45 Cal. 3d n. 753 2d (1988). special jury circum- 56, n. The further found the during rape, making murder the commission of stance of penalty eligible penalty. Thompson the death After for recommending jury phase proceedings the was unanimous judge imposed. In capital a sentence, which trial later guilty jury of second- found David Leitch trial, a different slaying. degree for role in Fleischli’s his murder Supreme unani- the California Court April 28, 1988, On Thompson’s rape mously and murder convictions affirmed rape special finding circumstance. jury’s and the sentence, with two death court also affirmed dissenting. in the concurred justices The dissenters seven rape rape convictions and of the murder affirmance sentencing jury’s rec- asserted special circumstance, but improper manner an influenced in been ommendation of David solicited the murder Thompson had evidence pe- Thompson 2d, 144-145, 753 P. at 74-75. Id., Leitch. rehearing, in June 1988. the court denied which titioned Court, petition for certiorari with this Thompson also filed (1988). denied. 488 U. S. which we petition, which Thompson first habeas filed his state Supreme in March 1989. denied California Court petition filed January federal 1990. The District Thompson’spetition Court held abeyance while pursued unexhausted claims in state court. January Supreme 1991, the California denied Court sec- *7 petition. ond state February habeas In 1993, the Califor- Supreme nia Court Thompson’s denied third state habeas petition.
In 1993, November the United District States Court for evidentiary the District hearing Central California held an Thompson’s on the raised in claims petition. federal habeas granted In an March order dated 28,1995, the District Court rape rape special as the habeas relief and conviction cir- cumstance and denied relief as to the murder In conviction. Thompson’s attorney the Court’s view, District trial ren- rape dered charge. ineffective assistance of counsel as to the failings by attorney. The cited two District Court the First, held, the counsel failed to certain of contest the conclu- expert the State’s Second, sions offered forensic trial. impeached counsel have determined, the court should the jailhouse greater credibility two to a extent informants In failings view, he the District these than Court’s did. Thompson prejudiced under the rule of v. Strickland Wash- (1984). Having granted ington, 668 relief as the 466 U. S. special Thomp- the ruled rape circumstance, District Court the murder was invalid. As convic- son’s death sentence rejected Thompson’s claim he had Court the tion, District alleged were inconsist- prejudiced what been prosecution’s at his trial and the theories encies between transcripts Having read David Leitch. later trial of mainly in em- “the trials differed the court found trials, both phasis.” App. 71. is critical to the proceedings timing of later federal a unanimous 1996, resolve. On June we
issues now panel Appeals reversed Dis- three-judge of the Court of rape grant conviction relief as to trict Court’s denial of habeas rape special circumstance, affirmed and relief to murder conviction, and reinstated Noting “[t]he death presented strong sentence. that State rape” evidence of trial, 109 F. 3d (CA9 1997), irrespective the court held that, whether performance Thompson’s counsel was deficient in the man- Thompson alleged, Thompson ner could demonstrate prejudice under Strickland. August petition rehearing 5,1996, filed a
On for rehearing suggestion bane, for en circulated which Appeals judge” of “each active the court. See U. S. Court of 5.4(a)(1),p. (Aug. for the Ninth Circuit General Orders 1997). original panel 6, 1997, order dated March an petition rejected observing suggestion, denied suggestion “[t]he court has been advised of the full rehearing judge re- no service has en banc and active *8 App. quested a to rehear the matter en banc.” 137. vote panel opinion reissued its case order, In same Thompson petition changes. filed a for certio- minor with we on Court, 2,1997. denied June rari with this which deny- Appeals its of issued mandate The Court U. 1259. S. Thompson’s 11, ing ease on June 1997. relief in all habeas Thompson’s response, of California scheduled In the State August 5,1997. for execution July petition 3, state habeas on
Thompson a fourth filed parole alleged stated in David Leiteh had it, In he 1997. Thompson en- hearing and Fleischli had witnessed that he on the appeared be consensual intercourse gaged to in what Supreme Court The California night of murder. Fleisehli’s July petition 16,1997. on denied Thompson with the Court July filed a motion 22,1997, On denying The habeas relief. mandate Appeals recall its to Dis- States following day, Thompson filed motion United judgment pursuant Federal to from for relief trict Court 60(b). support motions, of both In of Civil Procedure Rule alleged that he had seen statement Thompson Leiteh’s cited engaged sex. in consensual Thompson Fleischli 60(b) The District Court Thompson’s denied Rule motion July on 25, 1997. The court construed the motion to abe petition §2244 successive under 28 U. C. by S. as amended ruling AEDPA, that permitted “must be to 60(b) utilize a Rule motion to make an end-run around the requirements” of App. AEDPA. The court observed alleged that the new statement Leitch conflicted with Thompson’s specifics own account of his encounter physical with Fleisehli, the evidence in ease, pre- vious told stories Leitch himself. Thus, the court held, “certainly requisite cannot showing make the actually he is innocent such that his execution would abe justice.” miscarriage Id., at 188. Appeals Court denied motion to recall July days
the mandate on 28,1997. later, Two however, the full court voted consider en banc whether recall its panel “to earlier mandate consider whether the decision of miscarriage our court result would a fundamental justice.” 1042, 120 F. 3d 1043. The scheduled oral question August argument days this on four before scheduled execution. July on 29, 1997, the California
Meanwhile, Governor clemency hearing grant Thompson. on held a whether arguments presented by Thompson’s addition to attor- during hearing, the “the neys reviewed materi- Governor [Thompson’s] petition behalf, and letters als submitted *9 clemency, of the signed by supporters of the submissions County Attorney, of the Orange District the letters trial opinions clemency,” Thomp- concerning judge all the court provided “the materials and recommendation ease, and son’s App. to Brief for [him] of Prison Board Terms.” Legal Curiae A-2 Foundation Amicus Criminal Justice Wilson). (Decision compre- In a of Governor Pete to A-3 July found 31, 1997, dated the Governor hensive decision remotely making any” “ha[d] approached Thompson rape Id., A-16. showing of or murder. at The of innocence agreed judge presided Governor with the view the who Thompson’s trag- “it trial, over an would be absolute edy travesty justice seriously and a to even consider clem- Ibid, (internal omitted). ency quotation in this case.” marks Clemency was denied. days
Two before be executed, was to divided Appeals panel of the en banc Court recalled the court’s days This came mandate of June 1997. action after year Thomp had and mandate issued almost full after rehearing suggestion for en son filed his banc. had Appeals on it did not recall the mandate Court of asserted Thompson’s did so recall, later motion for but basis sponte, presented sua on of the claims evidence basis petition. court Thompson’sfirst Thus, federal habeas any new predicated on of the mandate is not said, its “recall to recall in his motion or claims raises evidence 3. The court stated 120 3d n. 1045, 1049, F. mandate.” sooner, but the mandate recall it had considered whether Thompson’s state- until the conclusion had chosen wait taking proceedings action. before recalling its earlier presented two bases for The court certain that, absent First, the court asserted mandate. [the] it misunderstandings court,” would within “procedural underlying decision of the for en banc review have called 1047. denying issuing Id., relief. the mandate before misunderstandings a mishandled included procedural These judge’s failure one chambers transition in law clerk original panel had issued that the judge to notice of another (Kozinski, dissenting). J., Id., opinion in the case. its origi- decision asserted the the en banc court Second, justice.” Id., at miscarriage of to a panel “would lead nal the en case, Having mandate recalled the his federal first merits went to address banc court coun- trial held that petition. The court charge rape provided assistance as sel ineffective *10 rape special circumstance, to prejudice. the defendant’s plurality granted A of the court would have habeas relief on ground additional of prosecu- inconsistent theories tion his at trial and the later trial of David Leitch. The majority made no effort to determine whether actually rape was innocent of the and murder of Fleisehli. grant court nonetheless affirmed the District Court’s of rape rape special writ conviction and circum- stance, vacated sentence, death and further “re- manded] [the question murder conviction for light Court’s] District initial consideration in of our vacatur rape Id., years conviction.” 1060. almost Thus, murder, after the Ninth Fleischli’s Circuit directed the Dis- partial trict Court “enter writ unless the State elects retry Thompson within reasonable time.” Ibid. argued judges Judge majority’s Four dissented. Hall Thompson to allowed evade AEDPA’s restrictions decision Judge petitions. Id., at 1064-1066. Kozinski successive majority detailed the circumstances which led'the to find its process He that, en had malfunctioned. asserted con- banc process trary majority’s en conclusion, to the the court’s banc supposed Id., at In third “operated just as it’s to.” 1067. opinion, Judge dissenting recited in detail the evi- Kleinfeld guilt rape. Id., dence Appeals’ recalling order its hours the Court Within with this a sec- California Court the State of filed mandate, construed as petition mandamus, writ of which we for a ond granted petition, 521 S. U. petition for certiorari. We (1997), now reverse. Although some point, expressed doubt on the have Justices II Co., 353 U. g., v. Power S. see, States Ohio e. United (1957) (Harlan, appeals are dissenting), the courts of J., 102-103 power to man recall their recognized to an inherent have Hawaii subject an discretion. to review for abuse dates, *11 550 (1983)
Housing Authority v. 463 U. S. 1324 1323, Midkiff, chambers); J., see also Hazel-Atlas Glass (Rehnquist, (1944). Hartford-Empire Co., Co. v. 322 U. 238, S. 249-250 light profound attaching repose” In of “the interests in to appeals, power the mandate a however, of court of the can only extraordinary be exercised 16 circumstances. C. Cooper, Wright, Miller, A. E.& Federal Practice and Procedure § (2d 1996). p. sparing 712 ed. The use of the power resort, demonstrates it is one of be held in last against grave, contingencies. unforeseen reserve majority extraordinary The en asserted circum- banc recalling justified Thomp- its the mandate in stances order “[b]ut procedural misunderstandings for because, son’s ease judges court, an call of this en bane would have some upon ordinary 3d, time.” 120F. been made and voted original panel As its deci- earlier, at 1048. noted issued denying 19, 1996, habeas relief on June and sion rehearing rehearing petition suggestion a for en filed for January panel August 5,1996. 17,1997,the noti- bane on On reject suggestion. fied the full court of its intention (Kozinski, panel dissenting). its J., The reissued Id., at 1067 opinion revisions March 1997. with minor earlier petition panel also denied order, March rehearing rejected suggestion en rehearing his for for although had panel that, the full court observed banc. judge suggestion, active no been advised en banc requested a the case vote rehear service had of the Ninth specified Orders in the General time within the App. Circuit. opinion that the follow- Judge Kozinski’s appears from
It off-panel an transpired. 12, 1997, March ing On events also opportunity make requesting panel, an to the judge wrote ease en bane. The vote to rehear the a belated call for panel’s had been “circulated judge decision stated that judge’s cham- shortly in the clerk transition” before law assigned to the clerks old and new law and that “the bers, failed (dissenting case to communicate.” 120 F. 3d, opinion). judge request Another seconded and asked: panel’s January [the 17, 1997, "Was notice of intention to re ject suggestion rehearing banc] for en circulated? Did opinion I it?” panel Ibid. miss The author of the denied request explaining en belated banc call, judges requesting been notified two months earlier of *12 panel’s reject Thompson’ssuggestion, the intention to id., at every judge 1067-1068,which had itself circulated to active August of the court on 5,1996. panel stayed pending of
The
the issuance
its mandate
Thompson’spetition
this
to
Court for certiorari review. We
Thompson’spetition
denied
on June
1997.
Measured to Appeals’ of recall the mandate rests on Court decision grounds. of A law doubtful mishandled clerk transi- most judge’s judge another chambers, in one and the failure tion panel, original proposed action constitute to notice the setting “deep pol- slightest for aside the rooted bases icy repose judgments.” Hazel-Atlas Glass in favor of only supra, especially 244. This true where Co., at oversights judges consequence of the was the failure of two their to a to contribute views determination that been given by panel full consideration the merits court. if process
Even the Ninth en Circuit’s banc did somehow open malfunction—which is itself question, see 120 F. 3d, (Kozinski, (“[T]he dissenting) process operated J., to”) just only supposed compounded it’s court its —the delayed error when it further for more action than four alleged misunderstandings place. months after took promptness with which a court acts correct its mis- adequacy grounds reopen- takes is evidence of its for ing judges case, In this the ease. the two first revealed their oversights point to the full court in March At that 1997. [full] judges “request two remained free to that the suspend” voting vote to its time for limits rehear the ease en Ninth Circuit General 11.11, banc. See Orders They waiting so, to do chose not instead another four months request. was, effect, what an The Court make identical practical Appeals lay purposes all for wait while this petition certiorari, on the for the State sched- Court acted Thompson, date execution Governor uled firm *13 clemency only Then, an exhaustive review. two conducted days executed, was be the scheduled to before judgment recall the on which the came forward to heavy placed Court, this reliance. to mention State, not Appeals it for of to assert de- is answer the Court It no Comity comity. layed is not the interests limited action in of government. In judicial case, of a state this to the branch exten- government of took branch California’s executive denying relief to in reliance on the sive mandate action Thompson. only Su- than focus on California Rather considering fourth in preme interest Court’s meritless) (and, petition, predicted, habeas state could be as as well the Appeals should have of considered the Court of branch. California’s executive more vital interests negligence of It the rarest cases where would be grounds expressing judges views is sufficient in their two persons 32 million interests of a some frustrate the State if enforcing judgment Even this were a final in its in favor. ordinary no implicating finality,
a ease more than concerns grave by we would have doubts about the actions taken Appeals. Court of
Ill ordinary Thompson’s not an however, because ease, he judgment a seeks relief from in state criminal entered court. Appeals’ recalling To decide whether Court order proper circumstances, mandate in measure was these we it only against general application, not standards of but also against statutory applicable jurisprudential limits in corpus habeas eases.
A argues Appeals’ recall its man- California Court of (1994 2244(b) II) § Supp. ed., date was barred U. S. C. 2244(b)(1) provides: “A amended AEDPA. Section corpus ap- presented claim a second or successive prior plication presented in a section 2254 was under 2244(b)(2)pro- application be shall dismissed.” Subsection presented applica- or successive vides: “A a second claim prior presented in a that was tion under section exception narrow application be dismissed” unless a shall applies. question is the Court of The immediate whether Appeals of a “second or its mandate on the basis recalled for application” habeas relief. successive §2254 prisoner’s recall the mandate case, motion to underlying decision can be of merits of the basis purposes application regarded second or successive as a 2244(b). § petitioners the bar Otherwise, could evade application, prior against presented relitigation of claims *14 §2244(b)(1), pre- litigation of not against the claims bar or 2244(b)(2). § the prior application, If court sented in a grants subject to AEDPA irre- motion, its is such a action (in claims spective on the motion is based old of whether (in 2244(b)(1) § apply) or ones which ease would new which 2244(b)(2) § apply). would case 2244(b) § applies only
As a textual matter, where the court prisoner’s pursuant to a “application.” acts This carries im- plications cases where a motion to recall the mandate is pending, court but the instead recalls the mandate on its own 2244(b) § subject these cases initiative. Whether are de- pends underlying If, on the basis of the court’s action. recalling mandate, court new claims evi- considers or presented application in a relief, dence successive for habeas regard proper it the court’s action as based 2244(b)(2) § application. applies irrespective eases, In these sponte. of whether the court characterizes action as sua Appeals Thompson’s was ease, however, In the Court specific reciting that the exclusive basis of it acted on Thompson’s petition. federal The court’s char- first habeas sponte not, course, its action acterization of as sua does point; prove claims or evidence this the court considered filings, presented action would have later its application, so and would be sub- successive been based on 2244(b). § recita- ject But in court’s case first federal on the his it exclusive basis tion that acted pre- disproved matters petition is consideration filing. to have Thus court in a deem sented later we one. application successive rather than acted on his first recalling did not mandate court’s order its result, the As a letter of AEDPA. contravene govern case, this
Although terms of do not AEDPA in a manner must exercise its discretion appeals case, objects In a habeas of the statute. consistent with general guided by principles court must be moreover, now con- corpus jurisprudence. We underlying our applied principles as to this ease. sider those
B profound ex- attend the light societal costs that of “the Murray, jurisdiction,” v. 477 U. S. Smith ercise of habeas (1986), impose signifi- necessary we have found it 527, 539
555 limits grant cant discretion of federal courts (1991) g.,McCleskey e. Zant, relief. See, 467, 487 v. 499 U. S. (limiting “a district court’s discretion to entertain abusive (1977) Wainwright petitions”); Sykes, 72, v. S. 90-91 433 U. (limiting courts’ discretion proeedurally to entertain de claims); Teague (1989) v. Lane, faulted 489 288, U. 308-310 S. (plurality opinion (limiting of O’Connor, courts’ discre J.) give application retroactive tion cases); to “new rules” in habeas (1993)
Brecht v. 507 Abrahamson, 619, U. 637-638 S. (limiting grant courts’ discretion to habeas relief on the basis error”). of “trial enduring
These reflect respect limits our for “the State’s finality in the interest that have convictions survived system.” Id., within the state at direct review 635; (1995) (per 1, v. 516 U. accord, Bartholomew, Wood S. 8 cu- riam); (1992); Whitley, Sawyer Keeney v. 338 333, 505 U. S. (1992);McCleskey, Tamayo-Reyes, supra, 504 U. S. 7 v. Teague, supra, Murray Carrier, 477 v. U. S. 491-492; 309; (1982). (1986);Engle Isaac, 107, 127 v. 456 Fi 478, 487 U. S. nality to both the and the deterrent retributive is essential just pun nor criminal law. innocence “Neither functions judgment is known.” vindicated until final can be ishment finality, supra, McCleskey, criminal at 491. “Without Teague, effect.” of much of deterrent deprived its law is supra, at judging. There quality
Finality enhances also “nothing judge’s sense of re- of a more subversive perhaps subjective which inner conscientiousness sponsibility, judging art of part difficult subtle is so essential acceptance the notion all indiscriminate well, than an always else.” Bator, someone be called the shots will Corpus Habeas Finality Federal in Criminal Law and (1963). L. Prisoners, Harv. Rev. State Finality preserve federal balance. well to serves “ frustrates ‘both review of state convictions Federal habeas sovereign power punish offenders and their States’ *16 ”
good-faith attempts rights.’ to honor constitutional Mur- 128). ray supra, (quoting Engle, supra, Carrier, v. at 487 recognizes system independent power “Our federal the of a through State articulate societal norms criminal law; but power pass if the a laws little the of State means State McCleskey, S., cannot enforce them.” at 491. U. finality in compelling A interests when State’s are a fed appeals denying eral court of issues a mandate federal ha- point, having beas that for relief. At in all likelihood borne years significant id., costs review,” “the of federal habeas finality. is entitled to the assurance of State 490-491, lengthy proceedings have rim their course and When federal finality denying acquires issued, relief has an a mandate Only fi with an assurance of real added moral dimension. nality judgment a State execute ease. its moral can finality move Only can the victims of crime forward with real gen judgment knowing will be carried out. See the moral (1991). To unsettle Payne Tennessee, S. erally v. 501 U. injury profound “pow to the is to inflict a expectations these guilty,” punishing the Her interest in legitimate erful and con 506 U. S. (1993) Collins, rera v. (O’Connor, J., 390, 421 by and victims of curring), shared State an interest crime alike. extraordinary costs associ- illustrates well
This case of its mandate appeals’ recall court of a federal ated with By July to vindicate 31,1997, denying habeas relief. federal California, of legislature of the State the laws enacted rec- Thompson rape murder and and jury had convicted judge imposed had executed; the trial he be ommended that Supreme Court had af- death; the California a sentence refused and four occasions Thompson’ssentence firmed comprehensive and and, in a attack; it on collateral disturb sentence public determined the Governor decision, denying upon habeas relief just. Relying mandate was invoked its entire Thompson, the State California had executing judg- legal authority support its and moral ment. years Yet, after almost 13 of state and federal review conviction and year sentence, almost one after petition filed his rehearing suggestion for rehearing days bane, en a full 53 after issuance man- denying days date relief, and mere two before was scheduled to be executed, Ninth its Circuit recalled granted corpus. mandate writ The costs imposed any these as actions are severe be can imposed in federal habeas review. should be clear about
We the circumstances we address case. deal not this We with the recall of mandate to cor- *17 judgment rect mere clerical-errors in itself, the similar to those in Federal of or described Rule Criminal Procedure 36 60(a). of Federal Civil The Rule Procedure State can have grounds, preserv- interest, or in little based on reliance other ing a mandate not in accordance with the actual decision ren- by This a upon also is not case fraud dered the court. of calling question very legitimacy court, the into the of the judgment. Hartford-Empire Co. v. Hazel-Atlas Glass See (1944). a Co., U. 238 Nor is this ease where man- 322 S. Appellate stayed 41 is under Federal Rule Procedure date suggestion rehearing disposition of a pending the court’s en banc. a cases where, here, are concerned with
Rather, we to revisit merits appeals its mandate recalls court denying cases, habeas relief. these decision its earlier paramount, finality are all but with interests in State’s predicates appeals regal’d court of to whether the out irreg misunderstanding or some other procedural a on recall prisoner occurring has ularity prior to its decision. his claims in federal already review of had extensive “actua[l] strong showing of of a In the absence state courts. supra, at Murray Carrier, 496, v. State’s innoeen[ee],” finality prisoner’s outweigh the interest interests actual obtaining opportunity yet for review. another general considerations, Based these we hold rule sponte appeals be where federal court that, sua recalls deny- its mandate to revisit the merits of an decision earlier ing corpus prisoner, relief to state the court abuses it miscarriage justice its discretion unless acts to avoid a corpus jurisprudence. as defined our habeas The rule remedy the need to allow accommodates courts to actual in- justice recognizing point, that, while at some must State “'sovereign power punish be allowed to exercise its of- McCleskey, supra, (quoting Murray fenders.’” v. 487). Carrier, atS., 477 U. comports purposes
This with the values and un standard Although derlying govern AEDPA. AEDPA does this “certainly supra, provisions ease, its inform see Appeals our consideration” of whether the Court of abused (1996). Turpin, its Felker discretion. v. U. S. 2244(b) grounded respect for the Section statute judgments. exception finality claims of criminal With of constitutional law retroactive based on rules made new 2244(b)(2)(A), § can consider a Court, this see federal application only if presented in a second or successive claim among things, facts under- prisoner shows, other *18 convinc- lying his clear and establish innocence the claim 2244(b)(2)(B). § that mis- the ing See It true evidence. today justice adopt is somewhat carriage standard we of 2244(b)(2)(B). § g., e. See, in the standard more lenient than (factual §2244(b)(2)(B)(i) predicate “not have claim must for due previously through diseover[able] exercise of the been miscarriage justice is alto- diligence”). of standard central concern however, gether consistent, with AEDPA’s proceedings not be re- criminal of concluded that the merits strong showing of inno- actual of a in absence visited the applicable all in cases the rules course, And, of cence. supra, 549-553, at mandate, recalls its see the court where practice most rare and is limited to the further ensure extraordinary case.
559 applicable moreover, eases, in Like other standards justice objective miscarriage of content, standard is in “[wjell in law,” defined the ease and “familiar to federal McCleskey, It is S., 499 U. at 496. indeed courts.” apply voting to standard the determined to in Ninth Circuit Thomp consider en banc to recall the whether mandate (Order (“The 30,1997) App. July full son’s ease. 194 of See court has voted the mandate consider recall whether panel consider whether the decision result of our would justice”). in a miscarriage fundamental Hence the of stand “ only just ard is not also ‘a sound and workable means but ” channeling of Mc the discretion of federal habeas courts.’ supra, (quoting Cleskey, Murray supra, at Carrier, 496 v. 497). at
We now whether met determine this standard was Thompson’s case.
C miscarriage justice “[T]he exception is with concerned Sawyer, legal compared S., actual as innocence.” 505 U. emphasized scope” at We have often “the narrow exception. Id., accord, Reed, v. S. 340; Harris 489 U. (“narrow (1989) excep- concurring) (O’Connor, J., case’”). “'extraordinary tion” “To be credible,” claim actual innocence must be based on evidence reliable presented Schlup Delo, trial. v. S. U. (1995). rarity virtually evidence, Given the of such "in every allegation ease, of actual been sum- innocence has Ibid, omitted). (internal marily rejected.” quotation marks Although demanding scope all precise cases, miscarriage justice exception depends the nature of brought challenge petitioner. peti- the habeas If the underlying tioner crime, asserts his innocence actual he likely must show “it is more than not reasonable no juror light have would convicted him in evidence” new *19 presented petition. If, in his at 327. Id., capital challenges other petitioner hand, his sentence death particular, “by he must show clear convincing and evi- juror dence” eligi- that no reasonable would have found him penalty light ble for the death of the new evidence. Saw- yer, supra, at 348. Sawyer application standard
The has a broader than is at apparent. first As explained Schlup, the Court when a capital petitioner capital underlying challenges his murder “function[s] conviction on of an basis element that essen- tially Sawyer as a sentence “clear enhancer,” the and con- Schlup, supra, vincing” applies to the standard claim. capital petitioner 326. extent claims he Thus, to did likely Schlup victim, not than not” kill the “more stand- capital petitioner applies. the extent contests the ard To special rendering eligible for the death him circumstances Sawyer applies, penalty, convincing” “clear and standard special irrespective are ele- whether the circumstances capital here, murder mere sen- or, ments the offense tencing enhancers. difficulty Thompson’s present con- could some
A claim like Sawyer. cerning apply Schlup or whether innocence of his appreciable effort assert makes no rape challenges, first, his Instead, he Fleischli’s murder. special cir- jury’s finding of the second, conviction, and subject challenge rape. is former The cumstance of challenge likely the latter than not” Schlup standard; “more convincing” Sawyer standard. subject “clear to the possible theory, it would be to vacate then, In rape his conviction let but to stand conviction stand-alone anomaly perhaps re- death. This sentence of of murder and Sawyer later decided between some tension flects anomaly however, for us, Schlup. need detain fail under either standard. claims presented ample show prosecution evidence At trial, vaginal rape. of Fleisch- A swab committed Thompson’s blood body semen consistent with li’s revealed evidence type. App. extensive addition, there was *20 of restraint rape. consistent with Dr. Robert Richards, a pathologist performed who the autopsy on Fleischli and tes- prosecution tified for the at trial, that, stated at or near the time of Fleischli crushing injury death, suffered a to her right surrounding wrist bruising. with Id., at Deputy 9. Darryl years Coder, who his 23 as a law enforcement offi- cer had seen injuries, “hundreds” of handcuff testified the injury right to Fleisehli’s wrist was injuries consistent with pair handcuffs, caused Thompson’spos- of which were in session when he was arrested in Id., Mexico. n. 9. Dr. Richards further testified that Fleischli other bruises palms, on her left and ankles, elbow, wrist, left all of which or were caused at near the time Id., of death. at 9,10 Rec- ord Fleischli’s shirt and 1619. bra cut had been down the pulled middle exposing and down her elbows, her breasts restraining App. and her arms. 7, 109. Fleisehli’s mouth tape. gagged had been with duct id., 9 Record 1772. Judge rape.
There was further evidence of As Kleinfeld by Thompson, noted “Fleischli dissent, was murdered frequent among rape friendly fate more than victims sex partners.” jailhouse 3d, 120 F. at 1073. Two informants, though to a at trial, discredited substantial extent testified (as Thompson rape had confessed well as mur- der) to them. observed, moreover, the District
As Court devastating App. testimony “was to his defense.” own emphatic Thompson Contrary counsel, advice trial testify. The result all accounts a disaster chose to was rape he did not or Fleischli. for his claim that murder Thompson police prosecution got after his admit he lied having He also when he denied sex with Fleischli. arrest, having police lied to whereabouts admitted about Fleischli’s night telling apart- had left his murder, of the them she lie, When asked this ment with Kashani. about any- likely [as] replied, Kashani seemed as candidate “Mr. body at presented that time.” 18 Record 2378. He then his perhaps most recent, fantastic, most account of the night events that, murder. testified having asleep after consensual sex with he Fleischli, fell *21 asleep away, while, remained not more than six feet someone head, wrapped else stabbed five Fleischli times her body tape, towels, head and with duct a sheet, two her jacket, sleeping bag, body rope, a and a her from the moved apartment, carpet and scrubbed the to remove her blood. testimony Thompson’s The found District Court “was riddled outright App. with and 51. inconsistencies falsehoods.” testimony “Thompson’s further no District Court stated: jury’s point Id., doubt 51. The affected verdict.” at beyond every Thompson dispute; since lied about almost aspect jury good ease, reason other material whether the was consensual. to believe he lied about sex Thompson presents the evi- little to undermine evidence en its deci- presented at trial. The bane court based dence eyidence Thomp- only presented in and sion claims on the petition relief. Had it son’s for federal habeas first presented in additional evidence or claims considered the course, its deci- Thompson’s to mandate, recall the motion 2244(b). § subject supra, See been to sion have would federal record of first 554. Hence actual petition he has demonstrated govern whether will rape. innocence of catego- into two Thompson’spetition falls
The evidence to im- presented evidence Thompson additional First, ries. jailhouse credibility Frate, and Del peach of Fink rape Thompson confessed testified who informants presented Fink, In the case of murder to them. informant and of history as an of Fink’s evidence additional presented Thompson also for Fink. favors enforcement law that the effect officials enforcement law statements Frate, of Del ease In the witness. Fink was an unreliable officials presented that law enforcement evidence and certain members of family Del regarded Prate’s Del Prate dishonest, that jail Del Frate shared cell with prior David Leitch meeting Thompson, that Del Prate’s police statements to newspaper tracked accounts of the neglected crime, and that Del Prate to mention at trial his prior grand for convictions theft and distribution of halluci- nogens without license. impeachment provides
This evidence finding basis no justice. miscarriage Sawyer, As in step the evidence is a pertaining removed from evidence to the crime itself. 505 only It impeach S.,U. tends credibility Fink and Del Frate. To find proba- these matters all bility would have altered the outcome of trial, we should have assume, that there was first, little evi- apart rape testimony; dence of from the informant’s jury accepted testimony second, that the informants’ *22 assumption by without reservation. former is belied by the evidence recited above. The latter one is belied impeachment Thompson’s attorney substantial evidence did introduce. regard Thompson’s presented Pink, to
With trial counsel following felony prior evidence: Pink had four convic- prison spent years tions and had a total of 14 at the in time frequent diming used heroin on a of trial. He basis the 15 including period gave years preceding in which trial, he identity police. as a his statement He lied about his mat- numerous ter He acted as an informant on other of routine. including one occasion he informed on an- where occasions, prison. gain protective custody He re- other inmate penal facility in quested a transfer to another and received Thompson. against And he ad- exchange statement for his explain why being confessed to unable criminals mitted frequency. him such with pre- regard Thompson’s to Del trial counsel Frate,
With following sented evidence: Prate had served time for Del forgery. second-degree murder and At the time credit card felony charges in Ohio and Cali- Del faced trial, Frate claiming con- murderer fornia. Frate admitted another Del period con- diming the fessed to him which changing his account He also fessed to him. admitted Thompson’s to him times. Given confession numerous we impeaching would disre- informant, trial each evidence spect that, jury in were to find case if we impeachment presented evidence, had it been with still more it have reached different verdict. would support petition, of his first federal habeas presented pathologist opinions Irving Root, a also of Dr. evidentiary during the who on behalf testified disputed hearing cer District Dr. Root Federal Court. by Deputy opinions tain of offered Dr. Richards Deputy disagreed with Coder Cod First, at Dr. Root trial. injury crushing to Fleischli’s left that the er’s conclusion injury stated the wrist was caused handcuffs. Dr. Root corpses. injuries other was he unlike handcuff had seen 5,1997). (Aug. not, however, offer 52-54, 62-63 Tr. He did any injury might explanation have alternative as to how the disputed con- Second, Richards’ been caused. Dr. Root Dr. body. regarding Dr. Root the bruises on clusions Fleisehli’s opined left wrist were to Fleisehli’s ankles and bruises Id., He caused 47-50. hours before death. least palms re- further were the the bruises Fleischli’s stated lividity, gravity settling e., sult i. of blood after *23 there had been Id., Third, death. at 48. Dr. Root noted body. “infrequent” vaginal sperm on Fleischli’s the swab of suggested finding re- Id., could be the at 63. this Dr. Root douching drainage sperm sult of or male, count for the low or suggested the other after Ibid. He further intercourse. drainage. possibility of evidence in the case ruled out the low opine at as to whether Id., sperm not, however, He did 63-64. douching probable re- of the count or was more maining possibilities. Finally, tes- his Root summarized Dr. timony agreeing remarkably way “there was little in the body.” to the trauma decedent’s Id., at 52. testimony provides
Dr. Root’s no for disturbing occasion findings jury testimony ease. His crushing injury that the to Fleischli’s wrist was not caused is compelling, given handcuffs far from Deputy Coder’s (albeit experience injuries extensive with handcuff with liv- ing persons) and any Root’s Dr. failure to offer alternative explanation as to crushing injury might how have oc- testimony curred. His that the other bruises Fleischli’s body plausible. were caused well before is death more Un- Richards, like Dr. however, Root his Dr. based conclusions not body, on his own examination of on but his review of of Dr. id., record Richards’ examination. See It 70. improbable, walking moreover, that Fleisehli had been any body, about with bruises all over her without witness having days her noticed condition hours before infrequent sperm murdered her. As for the vaginal suggested Dr. Root himself the cause swab, sperm might possibility been amale, low count for the have rape. Finally, Id., Dr. with Root’s assess- consistent body large to a trauma was extent ment of the overall testimony at trial. For in- with Dr. Richards’ consistent vagi- no evidence of Richards testified there was stance, Dr. though bruising tearing he indicated ease, or Fleisehli’s nal (and dispute) did no such evidence in there was Root Dr. rape As Dr. Root majority of cases. 10 Record 1629. “re- acknowledged, there was his conclusion that himself body was markably lifted verba- trauma to Fleischli’s little” autopsy report in Fleisehli’s case. own Richards’ tim from Dr. 5,1997). (Aug. Tr. 52 juror have convicted say no reasonable would To testimony, presented rape Root’s if with Dr. totality ignore of evidence of have we then, would guilt. we This cannot do. *24 566 conclusion, not meet evidence does the showing likely necessary
“more than not” to vacate his rape, stand-alone conviction of much less the “clear and con- vincing” showing necessary to vacate his sentence of death. judgment The the of of State California will not result in justice. miscarriage Appeals The Court of abused its holding contrary. discretion in
IV Appeals judgment of reversed, The the Court of is 11, to case remanded with instructions reinstate the June Thompson. denying to habeas relief 1997,mandate
It is so ordered. with whom Justice Stevens, Justice Souter, Justice Breyer dissenting. Justice Ginsburg, join, accept representation majority, of the Court I Like acting sponte Appeals it in its decision to sua that was position sup- previous August 1997,a 3, its mandate recall panel ported by July denied 1997, the the record. On which was an respondent’s mandate, motion to recall the advantage might from whatever he obtain effort seek during newly en rehear- evidence, and banc discovered beyond nothing ultimately granted ing the court considered corpus respondent’s presented first habeas the record proceeding. Appeals my assumption acted that the Court
Even on appellate integrity its own the interest of on its and in timing process, is a matter for however, its actions it con indicated that chose initiate regret. court has shortly sponte this de after Court recall sua sideration judgment appeals first court’s nied certiorari review (CA9), denied, U. S. 3d cert. 1997, 109 on June F. (1997), no immediate action but chose take systems. comity between state and federal interest of
567 Appeals The Court of accordingly acting refrained from the merits until after adjudicated the state had courts a posteonvietion fourth state claim, the Governor of California comprehensive a undertaken review of the case and had clemency, denied respondent’s the State had scheduled consequence, a execution. As comity for concern that motivated the court came to look hope like a that state deci- sionmaker would somehow obviate the federal court’s need to advertise its own mistakes and take corrective action. timing
But as as Appeals’s may unfortunate the Court of ground have that is majority been, not the on which the re- judgment rehearing. verses the entered on the en banc rejecting ap- the en court, conclusion of bane the Court plies a new and erroneous standard to review the recall of respectfully mandate, and I dissent from its mistaken conclusion. majority, begin longstanding
Like I with view that authority a a court’s to recall mandate in order to correct judicial power, in the
error is inherent ante, 549-550 Housing (citing Authority 1323, Hawaii v. 463 U. S. Midkiff, (1983) chambers); J., 1324 Hazel-Atlas Glass (Rehnquist, (1944)), Hartford-Empire Co., 238, 322 249-250 Co. v. U. S. only subject discretion, ante, review abuse of Although we have discuss the had no occasion to abuse appeals applied to as distinct standard actions of court of suppose court, trial there no reason from those merely appellate it is an be affected criterion should because discretionary power to act in exercised that has court variety of that the true, course, It is first instance. discretionary requires caution in subjects decision left Friendly, Indis synthesizing discretion cases. abuse of See (1982); Emory 747, L. 762-764 Discretion, 31 J. About cretion Court, Viewed Rosenberg, the Trial Judicial Discretion (1971). Syracuse At 22 650-653 Above, L. Rev. From say high degree of defer however, one can least, authority discretionary exercising is the ence to the hallmark of such Joiner, review. General Electric v.Co. (1997); Hockey League U. S. 136, 143-147 National v. Metro (1976) politan Hockey (per Club, Inc., 427 U. S. cu- riam). may Thus, one, in such a case as this deference be any accorded to reasonable selection factors as relevant to (since the exercise of a court’s discretion the determination to recall is one for which criteria of have become decision *26 standardized), 648 2d Criden, 814, see United States v. F. (CA3 1981), weighing light the of factors in 818 and to these particular Prods., Avnet, Inc., Lawson Inc. v. facts, see (CA7 1986);1 1429, Davis, & M. 782 F. 2d 1437 S. Childress (2d 1992) p. § 4.21, of 4-163 ed. Federal Standards Review (“It said, that then, be in run-of-the-mill discretion could differently by ary applies context, facts, and calls, review the many the of deference times actual level factors, but that clearly to errone- to used for the boils down one similar that proposition, then, of discretion general abuse rule. As ous jury to re- is to a error test than the deference closer clear irrationality”); to cf. Citizens Preserve Overton view test of (1971)(explaining Volpe, 402, 416 the Park, v. 401 U. S. Inc. 706(2)(A), § which re- of 5 U. S. standard review under C. “arbitrary, agencies are not ca- quires choices that to make in accord- pricious, discretion, of or otherwise not an abuse (“To th[e] law”); finding [required make with the ibid. ance 706(2)(A)] § must consider whether de- under of relevant factors on a consideration based cision was judgment”). been error of has a clear whether there and only underscored here obligation is of deference en to consider an banc was the recall that the reason for fact Ap- of Courts for the rehearing, a administration matter of intrusion, avoid peals has been Court careful on which this 259, Case, 345 U. S. Railroad Western see Pacific (1953). 19n. Appeals underlying the action Court The factors justi- wholly appropriate, the court’s stated were in this case
569 having been to fieation exercise extreme care counter procedural own re- malfunction its mechanisms where the might constitutionally sult otherwise well be a erroneous im- position penalty. only ques- Indeed, the death serious validity goes tion raised about the of such considerations legitimacy rehearings employing en bane to correct a panel’s application 3d error in the of settled See 120 law. F. (CA9 1997) (Kozinski, dissenting). 1045, 1069-1070 But J., rehearing process that however true is bane cannot it en effectively every three-judge panel function to review arguably astray surely goes particular case, it none- may theless to en reasonable resort bane correction that necessary standing to avoid a error be- be constitutional tween a is, all, life sentence and an It after execution. axio- correction, matic that this Court cannot itself to error devote yet discretionary re- death cases exercise our just may Kyles purpose view this be warranted. See (1995); Whitley, id., U. v. S. (Stevens, concurring). J., *27 background spec- To the the sure, be there lurks in faint power. and ters of overuse misuse of the recall All would agree power that a the to recall mandate must be reserved “exceptional C. circumstances,” 3d, 1048;
for 120 16 F. Wright, Cooper, A. & Miller, E. Federal Practice and Proce- (1996) § (citing pp. 716-717, dure cases from the n. Appeals recognizing power various Courts of that the must sparingly), adjudication used in and be the interests stable judicial efficiency, growing administrative which caseloads growing place premium. agree, a would that too, All sponte a sua recall mandates could not be condoned as mechanism to frustrate the second succes- limitations on and 2244(b).1 § petitions, e.g., If sive C. see, U. S. 1The Ninth Circuit itself seems a motion to recall recognize to that petitioner request filed a previous mandate to federal subsequent habeas relief or that analogous petition is to second successive is sub- suppose
there to were reason sponte that the sua recall respect, would be overused in might or abused either we well a given simply see its use as unreasonable in case to many deter resort to it in too But stand, cases. as matters we have no reason for such fears and no to circum- reason response legiti- Appeals’s scribe the Court of its otherwise history up optimis- mate If concerns. should show us too every we will occasion to tic, have revisit the issue.
Going legitimacy Appeals’s from of the Court of con- invoking cerns to the reasonableness them on the facts only points. I mention first on the here, need two The arises question whether administrative mistakes the chambers of causing only judges what court saw two could seen as be miscarriage justice permitting as the threatened ineligible for death; who was two fail- execution of someone miscar- en banc review are not cause of ures vote for riage against is such review unani- when the vote otherwise anyone ever the math. But who has at least is mous. Such judges sup- judges that are other knows sat on a bench with may they other, One see posed do. to influence each they all take an- something see, the others did then the en bane it was reasonable here for other look. So mistakenly only judges failed to two when to believe that misunderstandings rehearing, could their en banc vote for the result. affected well have appeals application of only remaining bar that said to be policies the facts this case
court’s panel thinking had en court was mistaken banc conclusion it reversed the trial eourt’s committed error when rape in the case of counsel assistance ineffective *28 meaning v. Wash of prejudicial Strickland within the been (1984). whether en But 668, ington, 466 693-694 U. S. quéstion fact is of majority on this law was correct bane Penalty and Effective Death of the Antiterrorism jeet constraints 453, Sumner, (AEDPA). 461 e. Nevius v. See, 105 F. 3d g., of 1996 Act 1996). (CA9
571 not the issue here. The issue on abuse-of-diseretion review simply is voting whether those to recall the mandate to allow en bane reasonably review could thought have the earlier panel mistaken, had been and the of conclusions the District yes question. Court suffice answer to that Thomp See (CD Calderon, son v. Civ. No. 89-3630-RG Cal., 29, Mar. 1995),reprinted App. 14-16. The ultimate merit of either underlying court’s answer to the question is not the touch stone of abuse-of-discretion Hockey review, see National (under League, S.,U. 427 at 642 abuse-of-discretion review, question reviewing relevant is not whether the result), would have reached the same and here we review (the only underlying abuse, not the merits of the ease prejudice question whether should be on the found record of review).2 warranting this case not majority, terminology course, adhere to the of abuse reversing the Ninth But it is
of discretion Circuit. abuse by” the “informed 1996 to the of discretion amendments corpus provisions statute enacted certain 104-132, ante, 110 AEDPA, 558; L. see Pub. Stat. (1996), Turpin, 518 and as so informed the Felker v. U. S. recognition. beyond standard is That abuse-of-discretion on reformulation is aside, as unwarranted Court’s as it is AEDPA. own terms of Court’s terms miscarriage justice review of the likelihood of a Abuse-of-diseretion Rule sanctions for to the abuse-of-diseretion review of is analogous context, reviewing that courts should that we held filings. frivolous justification. legal conclusions about substantial to district courts’ defer (1990). Corp., Gell Hartmarx Cooter & In the 496 U. S. 401-405 v. fpr circumstances, our an abuse subject where review present court’s miscarriage is an conclusion that a threatened appellate discretion mandate, I that justify believe we justice recalling sufficient Appeals’s preliminary some deference the Court.of similarly give must standard, legal of a may have been analysis misapplication there the ultimate addressing would not defer to it if we were though even we merits, legal whether a trial court committed error. question *29 Why thought recalls to review of AEDPA is counsel anything abuse-of- but the traditional mandates under anything major- by unexplained in the is discretion standard Ap- accepts majority, ity opinion. me, like Court covertly allowing respondent peals’s position that it was not majority petition; assumes litigate to a second habeas acting to its own motion recall that the Ninth was on Circuit first to reconsideration mandate, in order allow assumptions, petition. On these Ante, at 554. habeas Nothing application to the issue before us. AEDPA has no power speaks appeals’ inherent to the courts of in AEDPA long power over such, and as the mandate, to recall a so litigate other- prisoners mandates not abused enable petitions, see wise forbidden “second or successive” §2244(b), 28 U. AEDPA is not violated. S. C. by to- policies served in AEDPA
Nor are embodied 2244(b) day’s novelty. provides if a claim raised that Section prior presented a petition or was a second successive suppose if the claim application, I that it shall be dismissed. anything analogy cov- under en were to banc review bear previously claim AEDPA, it raised ered would be (b)(1), en reviewed since the claim covered subsection panel. previously by the banc the actual claim reviewed was analogy any yet majority such And does not draw (b)(2) provides does not on dismiss this basis. Subsection a petition claim that or when second successive raises previously presented, unless too be dismissed it shall law, rule constitutional based on new and retroactive §2244(b)(2)(A), previously evi- or undiscoverable based degree convincing to a dence that would show clear and considering convicted, no factfinder would have reasonable error, evidence, all it not constitutional been for 2244(b)(2)(B). any § again, majority draw Here, fails to sponte analogy, after for if reconsideration of a claim sua thought in subsec- recall to resemble mentioned were claim (b)(2), majority presumably require more than tion would *30 today. majority it In goes does fact, the no further than to showing call for a of actual innocence sufficient for relief yet cases, ante, under our earlier at 557; as the real Court dealing underlying izes, our standard with innocence an requires convincing no clear and proof, offense ante, 560, (1995), Schlup Delo, see v. U. S. the Court would be satisfied with a demonstration of innocence evi presented trial,” dence “not it ante, at even if let discovered, unknown, alone been discoverable but that far back. policy pursuing, poliey the Court is
Whatever it not the any justification apparent. isNor other this of AEDPA. simply particular when all else is we face case, said, a recall awkwardly some inadvertence administrative occasioned appellate may process have left some while corrected; impressions, want of finesse nor neither its unfortunate jettison majority’s the flex- decision to AEDPA warrant solving the sake standard for abuse-of-discretion ible systemic problem that does exist.