Full opinion text
Opinion by Chief Judge HUG; Concurrence by Judge KOZINSKI; Concurrence by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge TASHIMA. HUG, Chief Judge. JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLETCHER, JUDGE REINHARDT, JUDGE TASHIMA, JUDGE THOMAS concurring in Parts I, II, III, and IV, and JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLET.CHER, JUDGE THOMAS concurring in Part V. JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLECTCHER, JUDGE'KO-ZINSKI, JUDGE O’SCANNLAIN, JUDGE T.G. NELSON, JUDGE KLEÍNFELD, JUDGE THOMAS concurring in the judgment. JUDGE REINHARDT and JUDGE TASHIMA dissenting from part V and from the judgment. I. The procedural history, evidence, and facts in this case are set out in the Supreme Court’s opinion reversing our decision to recall the mandate. Calderon v. Thompson, - U.S.-, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Therefore, we will limit our discussion of the procedural history to the events related to Thompson’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). On July 23, 1997, while the motion to recall the mandate was pending before the en banc court, Thompson filed a motion in district court pursuant to Fed.R.Civ.P. 60(b); seeking relief from this court’s judgment denying him habeas relief under subsections (b)(2), (b)(3), and (b)(6). Treating the motion as the functional equivalent of a second habeas petition, the district court denied the motion on the grounds that, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2244(b)(3)(A), Thompson must obtain authorization from this court before filing a second petition. The district court issued a certificate of probable cause and Thompson timely appealed. Pursuant to Circuit Rule 22 — 3(a)(3), the appeal was assigned to the en banc court. On August 3, 1997, this court filed an en banc opinion sua sponte recalling the July 11, 1997 mandate and vacating the previous panel decision on the basis of the claims and evidence presented in Thompson’s first federal habeas petition; not based on any new evidence or new claims raised in his motion to recall the mandate. Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997). (en banc). We then dismissed without prejudice Thompson’s appeal from the district court’s denial of his Rule 60(b) motion as moot. Thompson v. Calderon, 122 F.3d 1184 (9th Cir.1997). The Supreme Court granted certiorari and reversed our decision to recall the mandate, Calderon, at -, 118 S.Ct. at, 1506, and remanded with instructions to reinstate the July 11, 1997 mandate denying habeas relief to Thompson. We reinstated the mandate and granted Thompson’s motion to reinstate his appeal from the district court’s denial of his Rule 60(b) motion. The State of California sought and obtained a warrant for Thompson’s execution for July 14, 1998, prior to the completion of our briefing schedule on the 60(b) appeal. We ordered expedited briefing and heard oral argument on July 9,1998. II. Thompson sought relief from judgment under Fed.R.Civ.P. 60(b)(2), (b)(3), and (b)(6). Thompson alleges that evidence discovered after the disposition of his federal habeas petition establishes that David Leiteh returned to the apartment Thompson and Leiteh shared while Fleischli was alive, and that Leiteh saw Thompson and Fleischli engaged in consensual intercourse and then left the apartment. Thompson claims that these facts were disclosed by Leiteh to the State prior to Thompson’s trial and to Leitch’s Parole Board in 1995 while the first petition for habeas corpus was pending before the district court and that the State engaged in misconduct in failing to disclose this exculpatory evidence. As noted, the district court denied relief on the basis that Thompson’s Rule 60(b) motion was required to be treated as a second or successive habeas corpus application and that he had failed to petition this court for an order’ authorizing the district court to consider such an application as required by 28 U.S.C. § 2244(b)(3)(A). A district court’s denial of a 60(b) motion is typically reviewed for an abuse of discretion. Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir.1993). However, the district court’s conclusion that the 60(b) motion had to comply with the successive petition requirement of the AEDPA is an issue of law that *we review de novo. United States v. Kim, 105 F.3d 1579, 1581 (9th Cir.), cert. denied, - U.S. -, 118 S.Ct. 353, 139 L.Ed.2d 274 (1997) (district court authority determinations are reviewed de novo). Several circuits have articulated the rationale in favor of treating Rule 60(b) motions in habeas cases as successive petitions governed by,§ 2244(b)(2)., See United States v. Rich, 141 F.3d 550, 551-52 (5th Cir.1998) (citing cases where Rule 60(b) motions were treated as successive petitions). For example, in Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.1996), the Eleventh Circuit noted, “Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions. That was true before [the AEDPA] was enacted, and it is equally true, if not more so, under the new act.” This reasoning is consistent with the Supreme Court’s observation in McCleskey v. Zant, that “a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). A review of pur case law reveals instances, prior to the enactment of the AEDPÁ, where a petitioner sought relief from judgment pursuant to Rule 60(b) which were construed as successive petitions. In Bonin v. Vasquez, 999 F.2d 425 (9th Cir.1993), we held that attorney neglect is insufficient to warrant review of additional claims under Rule 60(b) which could have been raised in an initial habeas petition. Id. at 427-31. Similarly, in Clark v. Lewis, 1 F.3d 814 (9th Cir.1993), we refused to consider a Rule 60(b) motion based on subsequent intervening case law. Id. at 825-26. In most cases when the factual predicate for a Rule 60(b) motion also states a claim for a successive petition under 28 U.S.C. § 2244(b), as it does in this case, the Rule 60(b) motion should be treated as a successive habeas petition. This is consistent with general habeas corpus jurisprudence, for a “Rule 60(b) motion following the entry of a final judgment in a habeas ease raises policy concerns similar to those implicated by a second petition Bonin, 999 F.2d at 428. • Thus, we agree with the district court’s conclusion that Thompson’s 60(b) motion must be treated as a- successive petition governed by the AEDPA. We do not' foreclose the' possibility, however, that under a different factual situation a 60(b) motion filed after denial of an initial petition for habeas corpus would not have to comply with the AEDPA’s successive petition requirements. III. Having concluded that the 60(b) motion must be treated as a successive petition and Thompson having requested that the appeal of the denial of the 60(b) motion be treated alternatively as a request for authorization to consider the application for a successive petition, the question’ is whether this is a matter properly before the en banc court to determine. Section 2244(b)(3) as amended by the AEDPA provides: (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. (B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. (C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. (D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. (E) The grant or denial of an authorization by a court, of appeals to file a second or successive application shall not be appeal-able and shall not be the subject of a petition for rehearing ■ or for a writ of certiorari. 28 U.S.C. § 2244(b)(3)(A)-(E). The obvious question is whether under (B) only a three judge panel .can consider whether to authorize the district court to consider this 60(b) motion, since it must be treated as a second or successive application for a writ of habeas corpus. The appeal of the 60(b) motion is currently before the en banc court. As is so often the case, decisions must be made immediately before an impending date of execution. Certainly, if at all possible, a decision upon whether a successive application should be granted and a stay issued should be decided on the merits rather having a person executed because of time constraints and procedural niceties. The Fourth Circuit in In re Vial, 115 F.3d 1192, 1193 (4th Cir.1997), convened an en banc court to consider- a request for permission to file a second or successive motion to vacate a prisoner’s sentence pursuant to 28 U.S.C. § 2255, which involved the application of the same requirements of the AEDPA provisions. In this case, the en banc court already has before it the appeal of the denial of the 60(b) motion. The en banc court could remand to the three judge panel that considered the original habeas petition to determine whether consideration of the 60(b) motion is authorized. This would be a waste of judicial resources. The grant or denial of the authorization would be subject to sua sponte review by the en banc court empaneled to hear this case. Although § 2244(b)(3)(E) provides that “the grant or denial of an authorization by a court of appeal to file a second or successive application shall not be appealable and shall not be subject to a petition for rehearing or for a writ of certiorari,” the language does not preclude sua sponte review by an en banc court. It merely precludes the parties from seeking á rehearing. See Triestman v. United States, 124 F.3d 361, 367 (2nd Cir.1997). Triestman involved a three judge panel sua sponte ordering a rehearing, but the principle is equally applicable to an en banc court sua sponte ordering a rehearing. The court stated: The parties also agree that, notwithstanding the restrictions on appealability in § 2244(b)(3)(E), this court has the authority to order a rehearing sua sponte. It is well-established that a court of appeals is entitled both to reconsider a prior decision sua sponte, see, e.g., United States v. Melendez, 60 F.3d 41, 44 (2d Cir.1995), vacated in part on other grounds, 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996), and to order a rehearing sua sponte, see, e.g., Krimmel v. Hopkins, 56 F.3d 873, 874 (8th Cir.), cert. denied, 516 U.S. 1015, 116 S.Ct. 578, 133 L.Ed.2d 501 (1995). By mandating that the initial decision of the court of appeals “shall not be the subject of a petition for rehearing” (emphasis added), § 2244(b)(3)(E) provides only that a disappointed litigant may not ask the court to reconsider its certification decision. By its plain terms, it does not purport to limit the court’s own power to review its decisions or to undertake a rehearing. As such, the government concedes, and we agree, that under the AEDPA, a court of appeals retains the authority to order a rehearing sua sponte. Id. Judge Kleinfeld’s opinion expresses the fear that there could be manipulation as to whether the three judge panel or the en banc court makes the authorization decision. This fear is unfounded because the en banc court designated to hear this Thompson ease would always be in a position to review sua sponte the decision of the three judge panel. This appeal of the denial of the 60(b) motion is currently before us. The appeal can reasonably be considered as a motion for authorization and the en banc court can reasonably be considered to have the authority to make the decision. This enables our court to reach the merits within the time constraints engendered by the impending date set for execution. Although other procedures could be employed, they would involve the likelihood of granting a stay or the unfortunate prospect of never reaching the merits before the date of execution. IV. We have concluded that Thompson’s appeal from the district court’s denial of his Rule 60(b) motion must meet the requirements of a successive petition under the AEDPA. We also have concluded that Thompson’s request for authorization to file a second petition is properly before this en banc court. Accordingly, we must decide whether a successive petition under 28 U.S.C. § 2244(b) as amended by the AEDPA may be used to challenge a déath sentence, when the newly proffered evidence relates to guilt of the offense constituting the special circumstance and not to guilt of the homicide. We interpret the AEDPA’s amendments to § 2244(b) to permit a petitioner, in a successive petition, to establish that he is ineligible for the death penalty. Prior to the enactment of the AEDPA, the Supreme Court articulated an “actual innocence exception” to the bar arising from the doctrine of “abuse of the writ” against bringing claims in a successive habeas petition. This exception requires that “one must show by clear and convincing evidence that, but for constitutional error,, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Because Thompson presents new evidence regarding the rape conviction, the lone special circumstance that made him eligible for the death penalty under California law, his request to file a successive petition is undoubtedly encompassed by the Sawyer standard. In amending § 2244(b), Congress adopted language similar to that articulated in Sawyer, requiring newly discovered facts which, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of- the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). We note the difference between the two standards-“eligible for the death penalty” under Sawyer, and “guilty of the underlying offense” under § 2244(b)(2)(B)(ii) as amended by the AEDPA. We consider this difference in determining whether, because Thompson is not asserting actual innocence of the homicide, but rather his ineligibility for the death penalty, he is stating a claim upon which relief may be granted. In effect, we must decide whether, the scope of the “actual innocence” standard articulated in Sawyer has been superseded by a narrower exception in the AEDPA.' Under a narrower reading, an anomalous situation could bp created where Thompson could challenge ,his rape conviction in a successive petition but, even if the conviction were overturned, he could not challenge his death sentence. Under the canons of statutory construction, the similarity of the language between Sawyer and § 2244(b)(2)(B)(ii) potentially cuts both ways. On the one hand, the fact that the standards are nearly identical suggests that Congress intended to codify the Sawyer standard. On the other hand, the slight difference between the two could be read as suggesting that Congress intended just the opposite: to enact a provision similar to but more stringent than the Sawyer standard. However, unlike Sawyer, the standard in § 2244(b) applies to all habeas petitions, not just capital habeas petitions. For that reason, it would not have made sense for Congress to adopt, without any changes, the Sawyer standard referring to eligibility “for the death penalty,” since the statute would have to apply to cases where the petitioner did not receive the death penalty. Thus, the need to cover non-capital habeas petitions best explains the slight difference in wording between the Sawyer “actual innocence” standard and § 2244(b)(2)(B)(ii). Furthermore, the “underlying offense” in a death penalty case is capital murder rather than merely homicide. Under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its progeny, the special circumstances or aggravating factors making a defendant eligible for the death penalty must be particularly alleged in the indictment. Thus, by claiming the constitutional infirmity of the lone special circumstance that made him eligible for the death penalty, Thompson is challenging his conviction of the “underlying offense” of capital murder. Because the words “underlying offense” encompass a charge of capital murder and because of the likelihood that the difference in the language between the Sawyer standard and new § 2244(b)(2) (B) (ii) was to accommodate non-capital as well as capital ha-beas petitions, we hold that Thompson’s claim that he is ineligible for the death penalty due to the constitutional infirmity of the rape conviction, which stands as his sole special circumstance, states a claim under § 2244(b). V. Since Thompson has stated a claim for which relief may be granted under § 2244(b), we must apply the standard of review articulated in that statute in determining whether to authorize the filing of a successive petition in the district court. Section 2244(b)(2)(B) provides that a prisoner may not file a successive petition in district court unless: (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(B). A court of appeals “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application” satisfies the standard in § 2244(b)(2). 28 U.S.C. § 2244(b)(3)(C); accord Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997). Thompson fails to make a prima facie showing of the requirement under § 2244(b)(2)(B)(ii). The Supreme Court in Calderon v. Thompson stated that the evidence before it was not enough to meet the Sawyer standard. - U.S. at -, 118 S.Ct. at 1503-04. Specifically, the Court recounted that there was evidence of intercourse with Thompson, “extensive evidence of restraint,” “injury to her right wrist with surrounding bruising .... consistent with injuries caused by handcuffs,” “other braises on her ankles, palms, left elbow, and left wrist, all of which were caused at or near the time of death,” and that “Fleischli’s shirt and bra had been cut down the middle and pulled down to her elbows, exposing her breasts and restraining her arms” and her “mouth had been gagged with duct tape.” Id. at-, 118 S.Ct. at 1503. When Thompson was arrested in Mexico he had handcuffs in his pocket. The Court also suggested that Fleischli’s murder was evidence that she had been raped, and noted that “[t]wo jailhouse informants, though discredited to a substantial extent at trial, testified that Thompson had confessed the rape (as well as the murder) to them.” Id. at-, 118 S.Ct. at 1503-04. Finally, the Court repeated the district court’s observation that “Thompson’s own testimony ‘was devastating to his defense,’ ” suggesting that “since Thompson lied about almost every other material aspect of the case, the jury had good reason to believe he lied about whether the sex was consensual.” Id. at-, 118 S.Ct. at 1504. The Court recognized that we had not considered the allegations in Thompson’s Rule 60(b) motion. See id. at-, 118 S.Ct. at 1504. Thus, the Supreme Court’s analysis explicitly did not include the evidence now before us regarding Leiteh’s statements. Nevertheless, we hold that Thompson has not made a prima facie showing that this additional evidence, viewed in light of the evidence as a.whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found Thompson guilty beyond a reasonable doubt of rape, which was the sole aggravating factor supporting the death penalty. By “prima facie showing” we understand [it to be] simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.... If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition, we shall grant the application. Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (citing Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)). In considering whether a prima facie case exists, it is important to consider the strength of the evidence that Leitch ever made these statements and the likelihood they would be credible to a jury. Furthermore, even assuming he made the statements and they were trae, whether they would have any likelihood of establishing that Thompson was actually innocent of the rape in light of the overwhelming evidence to the contrary is not clear. The affidavits of persons who related what Leitch said were not only hearsay but related conflicting stories. The only statement by Leitch himself that has been produced is one that he made in his 1995 parole hearing after the Thompson trial, but while the first habeas petition was pending. He stated “when I came in the apartment earlier, it looked like somebody were [sic] having sex out in the middle of the apartment, so I left, and I came back later.” He also said she wasn’t screaming. Later in the proceeding, in clarifying where Thompson and Fleisehli were located at the time, he affirmed that it was just about the same place she was killed. Then the presiding officer asked “I think there is some implication here that he might have killed her because he wanted to force himself on her sexually and she resisted. But you don’t know that that’s the case, right?’’ To which Leitch responded “No, I don’t.” ’ ' This minimal evidence that Leitch observed Thompson and Fleisehli having sex at the spot on the floor where she was ultimately killed and wasn’t screaming provides little support for a claim of actual innocence by Thompson, especially since his claim was that the consensual sex occurred on the bed. Fleischli’s body was found with duct tape over her mouth. This would provide an easy explanation for why there were no screams. It is also significant that‘this statement" at the 1995 parole hearing conflicts with his statements at parole hearings before and after, in which he stated that Thompson had raped Fleisehli. It also conflicts with the statement he made to his ex-wife, Tracy Leitch shortly after Fleischli’s death, that Thompson had “probably tried to rape [Fleisehli], and she wouldn’t go for it.” The inconclusive character of this evidence forecloses any reliance upon Leitch’s statements as a basis for relief. Thompson also relies on the statement of Floyd Owens who had been employed as a deputy sheriff and was involved in the Fleisehli murder investigation. He furnished an affidavit concerning his recollection of his responses when interviewed by an investigator and an attorney for Thompson in 1997. He states in the affidavit: 2. I retired from the Sheriff’s Department before the case against Thomas Thompson and David Leitch proceeded to preliminary hearing. Since moving to Nevada in August of 1982, I have not made any effort to remain informed regarding the matter. My deposition was taken by Thompson’s attorneys on February 6, 1992, regarding the investigation of the Fleisehli rape/murder. I found it difficult being deposed about the case in 1992, due to the passage of time. Not surprisingly, my recollection has not improved with time. 5. When I spoke to Thompson’s investigator and Mr. Denvir, about the crime scenario they asked me about, and indicated the source of the version may have been Leiteh, I was referencing the transcripts of his statements when he was arrested. Leiteh had given three or four versions of what had happened, so it is difficult for me to remember almost 16 years after the fact what those versions had been. At the time I spoke to Mr. Denvir and his investigator I did not believe, and did not intend to convey,, that Leiteh told me directly any version of the crime other than those stated in his initial interview after his arrest. Owens’ affidavit fails to establish that Leiteh conveyed a consistent account of his observations on the night of the murder. The fact that Leiteh may have related a version of consensual sex among several other versions provides little support for Thompson’s claim of actual innocence. An affidavit by Tamar Todd, a paralegal employed by the public defenders office, stated she would testify that she met with Leiteh in 1997 in prison and Leiteh told her that on the night in question he saw Thompson and Fleischli have sex on the floor in the square main room of the apartment, that there was nothing to indicate that Thompson was raping Fleischli, and that Leiteh believed they were having consensual sex. Andrew Love, an attorney for Thompson, submitted an affidavit that Leitch’s former attorney, Ronald Kreber, now Judge Kreber, told Love in 1997 that Leiteh had informed him prior to Leitch’s trial that on the night Fleischli was killed he had returned to the apartment he shared with Thompson, saw Fleischli and Thompson having consensual sex, and then left. There is little doubt that Leiteh did tell a story to some persons that he observed Thompson and Fleischli having sex on the floor where she was ultimately killed, and that on some occasions he said he thought it was consensual. It is also true that Leiteh, on several occasions, said he believed Thompson raped Fleischli. The credibility of his various stories is in serious doubt, the nature of his observations is questionable, and conflict with Thompson’s statements about where he had consensual sex with Fleischli seriously diminish any impact that Leitch’s statements could have. In light of the evidence viewed as a whole, Thompson fails to present a prima facie case that he could establish through “clear and convincing” evidence that no reasonable fact-finder could have found him guilty of capital murder. For these reasons, we deny his request for authorization to file a successive habeas corpus petition in the district court. The district court’s denial of the Rule 60(b) motion is AFFIRMED. Pursuant to 28 U.S.C. § 2244(b)(3)(A), request for authorization to file a successive petition is DENIED. Thompson’s request for a stay of execution is DENIED. . Cir. R. 22-3(a)(3) provides, in pertinent part: When a case is pending before a death penalty en banc court, any additional appeal or a matter pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event, in its discretion, may review the panel decision. The determination as to whether the case is assigned to the panel or to the en banc court is made by the Chief Judge in consultation with the concerned panels. . Fed. R Civ. P. 60(b) provides that: [O]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or (6) any other reason justifying relief from the operation of the judgment. . For example, if the State’s misconduct prevented the defendant from testing potentially exculpatory evidence which might provide the information necessary to assert a factual predicate for a successive petition, an independent Rule 60(b)(3) motion might be appropriate. In such a case, an application under section 2244 would afford no relief because the petitioner would not have the necessary exculpatory evidence in his possession, and the Slate might well have 'an incentive to avoid its disclosure obligations in habeas proceedings under Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir.1992). Thus, under those circumstances, it would be unfair and incongruent to treat a Rule 60(b)(3) motion as functionally equivalent to a successive petition. That is but one example, but it suffices to say that a bright line rule equating all Rule 60(b) motions with successive habeas petitions would be improper. . We disagree with the Seventh and Eleventh Circuit decisions rejecting a petitioner's claim of innocence of the death penalty as not cognizable under § 2244(b)(2)(B). See Burris v. Parke, 116 F.3d 256, 258 (7th Cir.1997); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir.1997).
KOZINSKI, Circuit Judge, concurring in the judgment, with whom O’SCANNLAIN, Circuit Judge, joins: I join that portion of Judge Kleinfeld’s concurrence (the second, third and fourth full paragraphs on page 930) that recognizes the full court never voted to take en banc Thompson’s motion for authorization to file a successive habeas petition. Further, the full court never voted to consider en banc case No. 97-99018, Thompson’s appeal from the denial of his Rule 60(b) motion. Nor were the procedures of Circuit Rule 22-3(a)(3) followed. This court’s July 30, 1997, order announces that the majority of the active judges had voted to take en banc Nos. 95-99014 and 95-99015; there is no mention of No. 97-99018. The ease is therefore still properly pending before the three-judge panel. Our August 3, 1997, order dismissing No. 97-99018, and our May 13, 1998, order reinstating it, were ultra vires. Because I believe we have no authority to speak, I say nothing further. ■ KLEINFELD, Circuit Judge, concurring in the judgment, with whom O’SCANNLAIN and T.G. NELSON, Circuit Judges, join, and with whom KOZINSKI, Circuit Judge, joins in part: I concur in the result the majority reaches, that Thompson has not demonstrated an entitlement to any relief in this proceeding. I also agree with the majority that Thompson has not submitted evidence that would entitle him to authorization to file a second or successive petition. But I would not reach that issue, because our eleven judge en banc panel would have no authority to grant the authorization even if we thought Thompson had presented sufficient evidence to be entitled to it. Thompson filed what Congress calls a “second or successive application” in the United States District Court. He sought a federal writ of habeas corpus addressed to his California state conviction and death penalty. That he styled his papers a motion for relief under Federal Rule of Civil Procedure 60(b)(2), (3), and (6), does not enable him to avoid the statutory limitations on second and successive applications. Thompson had previously petitioned for a writ of habeas corpus in district court and his case had gone to final judgment. He had prevailed in district court on a theory of ineffective assistance in counsel, but we reversed and ruled that a writ would not issue. Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997). Thompson petitioned for certiora-ri, it wás denied, Thompson v. Calderon, - U.S. -, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997), our mandate issued and the district court entered judgment. A week later, Thompson filed new papers seeking a federal writ of habeas corpus to obtain relief from his state confinement and death sentence. He claimed that newly discovered evidence that he did not rape Ginger Fleischli, and prosecution failure to disclose the new evidence to him during and after his trial, entitled him to a writ. . Though Thompson styled his papers as a motion under Federal Rules of Civil Procedure 60(b)(2), (3) and (6), rather than as a petition for a writ of habeas corpus, that does not entitle him to avoid the limitations of 28 U.S.C. § 2244(b) on “a second or successive application.” • I doubt there could be any form of papers seeking, as a practical matter, federal relief from a state conviction and sentence, after federal relief had previously been denied, that would not fall within the statutory provisions governing second or successive applications. In Clark v. Lewis, 1 F.3d 814, 825 (9th Cir.1993), we said that “where a habeas petitioner tries to raise new facts or new claims not included in prior proceedings in a Rule 60(b) motion, such motion should be treated as the equivalent of a second petition for writ of habeas corpus.” Likewise in Nevius v. Sumner, 105 F.3d 453, 461 (9th Cir.1996), we treated a motion to recall a mandate as a subsequent petition for a writ of habeas corpus, because to do otherwise would be to evade the strictures of McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and the Antiterrorism and Effective Death Penalty Act of 1996. Even if there might be a category of second or successive applications .for federal relief from state criminal confinement and death sentences not covered by 28 U.S.C. § 2244(b), this application would not fall within it. Thompson sought habeas corpus relief based on a claim of innocence of an aggravating circumstance and prosecutorial misconduct. These are grounds ordinarily and frequently asserted in habeas corpus petitions, and unquestionably covered by the statutory restrictions on second.and successive petitions. In its decision reversing our sua sponte recall of the mandate from our earlier decision, the Supreme Court said that the precise claim before us today would be a second or successive application limited by 28 U.S.C. § 2244(b). The Court said “had the court considered claims or evidence presented in Thompson’s later filings, its action would have been based on a successive application, and so would be subject to § 2244(b).” Calderon v. Thompson, - U.S.-,-, 118 S.Ct. 1489, 1500, 140 L.Ed.2d 728 (1998). Though the statement was dicta because the Court did not use it to resolve any issues in dispute, Thompson’s • argument that we should not do as the Court said cannot be accepted. Thompson argues that to the extent his motion in district'court was based on fraud under Federal Rule of Civil Procedure 60(b)(3), the policy of prohibiting successive petitions to avoid manipulative withholding of claims does not apply. But the statute applies to second and successive applications regardless, as the Supreme Court has said in this very case. Congress has established the procedure to be used for second and successive applications, as this is, in the Antiterrorism and Effective Death Penalty Act of 1996. The Act states that “[bjefore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Thompson did not move in this court for an order authorizing the district court to consider his application. Because he did not obtain an order authorizing the district court to consider the application, as required by 28 U.S.C. § 2244(b)(3)(A), the district court dismissed the application. The statute plainly required the district court to do exactly what it did. That should be the end of this case. We should simply affirm the dismissal on the ground that Thompson had not obtained an order authorizing him to file his second or successive application in district court, so the district court lacked jurisdiction to act on it under 28 U.S.C. § 2244(b)(3)(A). There is no reason to think that Thompson made a mere technical error or error of form. He has been very skillfully counseled by excellent lawyers, and may well have made a tactical decision to proceed as he did. Had Thompson moved for authorization to file his second or successive application, his motion would have gone to the same three judge panel that had previously heard his case. See Circuit Rule 22-3(a)(3). That panel had reversed the district court’s grant of the writ, Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997), and denied his motion to recall its mandate, Thompson v. Calderon, 122 F.3d 28 (1997). That panel expressly instructed in its published order that “[pjetitioner may file a second petition for habeas corpus after moving this court for authorization under 28 U.S.C. § 2244(b)(3)(A).” Id. at 30. The majority today considers Thompson’s request for § 2244(b) authorization on the merits and denies it. While that would be the correct decision, were we entitled to reach the merits, we are not. My disagreement with the majority regarding jurisdiction may affect future cases, so is worth setting out. Thompson did not make a motion in this court for authorization. He filed a notice of appeal in district court, from the order denying his motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Thompson did not seek appellate authorization to file a second or successive application until after we had, in an eleven judge en banc panel order, required supplemental briefs. Only then, in his concluding sentence, Thompson asked us to vacate and reverse the district court decision, “or, in the alternative, authorize the district court to consider Petitioner’s successor petition.” If Thompson’s request in his brief amounts to a motion under Federal Rule of Appellate Procedure 27, then it has to go to a three judge panel. The reason is that Congress said that “[a] motion in the court of appeals for an order authorizing a second or successive application shall be determined by a three-judge panel of the court of appeals.” 28 U.S.C. § 2244(b)(3)(B). Statutes get no clearer than that. We are eleven. “Three” does not mean the same thing as “eleven.” An eleven judge en banc panel cannot grant or deny a- motion for leave to file a second or successive application, because 28 U.S.C. § 2244(b)(3)(B) says “three-judge panel.” Thompson argues that the legislative history shows- that when it said “three,” all Congress meant was “more than one.” His citation is to a remark by Senator Specter that “Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court.” Cong. Rec., June 7,1995, S7805 (remarks of Sen. Specter). This legislative history provides no support for the argument, for several reasons. First, the Senator did not even mention en bane proceedings and was not discussing them, so inferring that he meant to allow them is unwarranted speculation. The Senator appears to have been speaking to the risk of a single idiosyncratic appellate judge acting in error. Second, individual senators do not make laws; majorities of the House and Senate do. See Puerta v. United States, 121 F.3d 1338, 1344 (9th Cir.1997). Finally, there is no ambiguity in the statute that would entitle us to resort to legislative history to figure out how to interpret away the ambiguity. Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir.1988). “Three” is among the plainest words Congress can use. If we could construe “three” to mean “eleven,” imagine what we could do with “two.” The Constitution says “two Senators from each State,” Art. I, § 3. But because construing “two” to mean “two” would conflict with evolving standards of “one person one vote,” perhaps we could construe “two” to mean “no fewer than two,” allowing for perhaps “seven” Senators from a large state. The majority takes the' position that anything a three judge panel can do, an en banc panel can do. Generally that is true, but not in this case. The statute regarding second and successive applications, 28 U.S.C. § 2244(b)(3)(B), says “three-judge panel,” and § 2244(b)(3)(E) says the three judge panel’s decision “shall not be appealable and shall not be the subject of a petition for rehearing.” Those words in the statute exclude the. possibility that we may proceed in the ordinary way to rehear matters en banc, or hear them initially en banc. We have held that 28 U.S.C. § 2244(b)(3)(E) requires us to dismiss a suggestion for rehearing en banc as unauthorized. See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997). The majority construes the statutory prohibition on “petition for rehearing” to leave room for sua sponte rehearing en banc. In our decision recalling the mandate, reversed by the Supreme Court, we had avoided the statutory restraints in § 2244(b) on second habeas petitions by proceeding “sua sponte” on Thompson’s first habeas petition. See Thompson v. Calderon, 120 F.3d 1045, 1049 (9th Cir.1997) (en banc), reversed on other grounds - U.S. -, 118 S.Ct. 1489, 140 L.Ed.2d 728. But proceeding sua sponte can at most avoid the § 2244(b)(3)(E) prohibition of “petition” for rehearing. Acting without a petition cannot avoid the § 2244(b)(3)(B) command that a motion “shall be determined by a three-judge panel.” We generally have authority under 28 U.S.C. •§ 46 to order initial hearing or rehearing of any matter en banc. But it is elementary that a -more recent and specific statute is reconciled with a more general, older one by treating the more specific as an exception which controls in the circumstances to which it applies. 2B Sutherland on Statutory Construction § 51.02 (5th ed.1992). The more recent and specific statute says “three-judge panel.” Thus it is plain that there is an exception to our general authority to hear any matter en banc, where the matter is a motion for authorization to file a second or successive application. Congress could have so provided in order to avoid the greater delays inherent in considering any matter before a larger panel. The majority bases its contrary conclusion on Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997) and In re Vial, 115 F.3d 1192 (4th Cir.1997) (en banc). But those cases do not establish the point. Triestman holds that the statutory prohibition of “a petition for rehearing” does not limit a court’s power sua sponte to rehear a matter. But the sua sponte rehearing in Triestman was by the three judge panel that had previously heard the matter, not a larger panel, so the court had no occasion to consider the statutory command that motions for authorization “shall be determined by a three-judge panel.” 28 U.S.C. § 2244(b)(3)(B). Because Triestman construed subsection (E) and not subsection (B), it is not on point. Because Triestman involved a three-judge panel’s sua sponte rehearing of its own decision, and not en banc hearing or rehearing, it establishes no precedent for en bane rather than three judge panel hearing or rehearing. In Vial, the Fourth Circuit convened en banc to consider a request for permission to file a second or successive application. All thirteen judges sat, so the case is indeed precedent for sua sponte consideration by’an en bane panel of more than three, as. the majority says. But Vial should be distinguished, for two reasons. First, the case does not cite subsection (b)(3)(B) and does not discuss at all the question whether a panel of more than three judges would comply with the statute. Because the question appears not to have arisen, the Fourth Circuit cannot be taken to have answered it. Second, a peculiarity of our circuit gives the difference between a three judge panel and an en banc panel a different meaning from what it has in the Fourth Circuit or any other. Our en banc courts consist of the chief judge and ten additional judges drawn by lot. Circuit Rule 35-3. For that reason, en banc hearing or rehearing consists of a different set of judges, both from a three judge panel, and from the entire court. This difference allows for manipulation of a case to gamble on a more favorable panel for one side or the other, if we do not carefully comply with applicable statutes, rules and general orders. On the Fourth Circuit, where Vial came down, there is no difference between the en banc court deciding something, and the full court deciding that the en bane court ought to decide something. But in the Ninth Circuit there is a big difference. We currently consist of 21 active judges, but only 11 sit on an en banc panel. For that reason, in the Ninth Circuit, judges not drawn for an en banc panel can affect what the en banc panel considers only when they vote on whether to take the case en banc. A majority of the court, necessary to take a case en banc, consists of 11, but a majority of an en banc panel consist of only 6, and cannot usurp the authority of the full court to decide which cases to take en banc. Because a “case” may be heard en banc only on a vote of the entire court, the majority is mistaken when it asserts that “the en banc court designated to hear this Thompson case would always be in a position to review sua sponte the decision of the three judge panel.” “Cases and controversies” may be taken en banc only if “ordered by a majority of the circuit judges of the circuit who are in regular active service.” 28 U.S.C. § 46(c). But the full court has never voted to take this case on banc. When we voted to go en banc last July, Thompson had not even made a motion- for authorization to file a second or successive application. He did not do so until we, as an en banc panel, ordered supplemental briefing after the Supreme Court reversed our earlier sua sponte recall of our mandate. As we stated in our order taking Thompson’s earlier case en banc, “[t]he full court has voted to consider whether to recall the mandate to consider whether the panel decision of our court would result in a fundamental miscarriage of justice.” Thompson v. Calderon, 120 F.3d 1042, 1043 (9th Cir.1997). Our decision recalling the mandate sua sponte recited that the full court had “voted to reconsider en banc whether to recall the mandate.” Thompson v. Calderon, 120 F.3d 1045, 1048 (9th Cir.1997) (en. banc). We stated expressly in our previous en bane decision that' the case at issue was “Thompson’s first habeas petition.” Id. Today, we rule on his second habeas petition. This is a different case. This time, we are not hearing en banc the motion for recall of our mandate regarding Thompson’s first ha-beas petition. We heard that ease, decided it, and were reversed by the Supreme Court. That case is over. A second or successive application is by definition a new case, albeit by the same plaintiff against the same defendant. That is why it cannot be filed without authorization. Fortunately, we have agreed upon the proper result, despite our disagreements on some aspects of the proper procedure for doing so. It has been seventeen years since Thompson murdered Ginger Fleischli. During that time Thompson has had the most extensive and careful consideration of his case at every level of the state, and federal systems, including two decisions, one to deny certiorari and another on the merits, before the Supreme Court. Great numbers of the most highly talented lawyers have devoted the utmost zeal to advocating every possible theory on his behalf. That he murdered Ms. Fleischli has not been put seriously in doubt. The issue has been whether the trial jury was right that Thompson raped Ms. Fleischli before he murdered her, or whether he had sexual intercourse with Ms. Fleischli with her consent before he put a knife through her head. Justice requires a conclusion. Proper procedure does not prevent a case from ever reaching a conclusion. While I concur in the result reached by the court, I believe that our en banc panel would have had no jurisdiction to grant relief in any event.
REINHARDT, Circuit Judge, concurring and dissenting: I concur in Parts I, II, III and IV of the majority opinion. However, because, in my opinion, Thomas Thompson has made a pri-ma facie showing of facts which, if believed, would mean that no reasonable juror could find him guilty of rape, I dissent from Part V. I would grant Thompson permission to file a second habeas petition and remand to the district court for a full hearing on the new evidence that he has presented. This court’s refusal to allow Thompson to file a habeas petition will result in the execution of a man who was convicted and sentenced to death in a trial that violated fundamental principles of fairness, in which the constitutional violations were so egregious that seven former prosecutors, themselves highly experienced in death penalty cases, took the remarkable step of filing an amicus brief on his behalf with the United States Supreme Court. Last August, this en banc court held Thompson’s trial constitutionally defective by a seven to four vote — a conclusion that has not to date been refuted by any court. While we are barred on procedural grounds from reversing Thompson’s conviction and death sentence on the basis of these most serious constitutional violations, they nonetheless must color the prism through which we view the evidence of rape and the procedures to which he is now entitled. Today’s decision bars Thompson from presenting, at a hearing which could establish his actual innocence, newly discovered evidence that was improperly withheld by the state. The end result is that a man who did not receive a fair trial and is likely innocent of the conduct for which he received a capital sentence will nevertheless be put to death by the state without ever having received any form of fair hearing and without ever having had an opportunity to present the most critical evidence of his innocence át a fair fact-finding proceeding. Thompson has made a prima facie showing of actual innocence of rape as required by AEDPA: “facts ... [which] if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). A prima facie showing is established by “a sufficient showing of possible merit to warrant a further exploration by the district court.” Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (per curiam) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). Thompson has submitted newly discovered evidence which, if believed, would cause any reasonable juror to have a reasonable doubt about his guilt of the rape charge and thus the rape enhancement: evidence that David Leitch, Fleischli’s former lover who was also accused and convicted of Fleischli’s murder, has admitted that on the night of the murder, he walked into the apartment he shared with Thompson and observed Thompson and Fleischli engaged in consensual sex. By this admission, Leitch placed himself at the murder scene before the murder occurred — a most damaging admission given the contrary story he has generally told. Leitch’s admissions directly contradict the prosecution’s theory that a violent rape occurred — a rape that would have been obvious to any observer. Accordingly, no jury that believed that Leitch was telling the truth could credit the prosecution’s theory, and thus, no jury that credited the Leitch admissions could convict Thompson of rape. Therefore, the question of whether Thompson can establish his actual innocence by clear and convincing evidence comes down to a pure credibility determination. Are the Leitch admissions true? As I will explain later, it is reasonably likely that they are. Thompson has therefore not only made the showing that § 2244(b) requires in order to obtain permission to obtain a hearing before an impartial district judge, but has clearly established the need for a full and fair evi-dentiary hearing at which the version of events contained in Leitch’s admissions can be tested by examining and cross-examining witnesses with actual knowledge of the facts. Instead we opt to execute a man on the basis of a prosecutorial theory that is supported largely by circumstantial evidence. As this en bane court’s earlier unrefuted opinion determined, Thompson was convicted of rape by a jury which had never heard a defense to the charge, because Thompson’s lawyer — whose performance fell far below minimal constitutional standards for effective assistance of counsel — decided to argue without any evidentiary basis that Leitch was “the rapist.” He did so instead of challenging the prosecutor’s fundamental premise that a rape occurred — a premise based almost entirely on circumstantial evidence that the sexual act between Thompson and Fleischli was non-consensual rather than consensual. Thus, the prosecution’s theory that a rape was committed — the theory that underlies Thompson’s capital sentence — was never adequately tested. Also, as our earlier en banc opinion concluded, Thompson was prosecuted by a district attorney who at two separate trials presented two contradictory theories of who was responsible for murdering Ginger Fleischli, and earlier at two separate proceedings in Thompson’s case presented two contradictory theories as to whether a rape had occurred. Thompson was convicted in part on the testimony of two jailhouse informants who claimed that he had confessed rape and murder to them. Their version of the crime directly contradicted the version testified to by four other jailhouse informants who had appeared for the prosecution at Thompson’s preliminary hearing. It is ironic in light of the glaring inconsistencies in the prosecutor’s theories and the stories of the prosecutor’s witnesses that the majority, deprives Thompson of an evidentia-ry hearing because Leitch’s statements exculpating Thompson were contradicted by other statements he made in order to try not to inculpate himself. Despite the history of repeated constitutional violations that must seriously shake any rational observer’s faith in the outcome of this case, and in the face of newly discovered evidence that undermines the factual basis for the rape conviction and enhancement, if not of the murder itself, the majority concludes that it must allow Thompson’s execution to go forward without permitting him the opportunity to have a hearing on this critical new evidence. I respectfully dissent. I do not believe that the law, even after Calderon v. Thompson, - U.S. -, 118 5.Ct. 1489, 140 L.Ed.2d 728 (1998), requires such a gross miscarriage of justice. The rape conviction, and thus the rape enhancement, is the key to the state’s right to execute Thompson. Without it, as the majority acknowledges, Thompson is not death eligible; in short, without it, California may not lawfully put him to death. Leitch’s account of consensual sex is the only eyewitness testimony — the only direct evidence other than that provided by Thompson himself of what actually happened the night that Fleischli was murdered — the only direct evidence as to whether a rape actually occurred. This newly discovered evidence potentially calls into question all of the conclusions that have been heretofore drawn from the array of circumstantial and'jailhouse informant evidence presented against Thompson. Up until now, the evidence of rape, untested at Thompson’s trial because of his lawyer’s inexplicable decision not to contest the rape allegation, has been — aside from the inconsistent and unreliable jailhouse informant testimony — entirely circumstantial. The bruising of Fleischli’s wrists, ankles and palms, evidence that she was gagged with duct tape, and the fact that someone ripped her shirt and bra down the middle and pulled it down around her elbows all suggest that she was violently restrained at some point on the evening she was murdered. The presence of semen in her body establishes that she had intercourse shortly before her death, with someone of Thompson’s (and, incidentally, Leitch’s) blood type. Of course, this circumstantial case was established at a trial at which the jury never had the opportunity to hear the evidence tested by an adversarial process. It is no wonder that the prosecution could assemble a fair amount of evidence that appeared to support the charge of rape at a trial at which defense counsel decided to attempt to blame the “rape” on someone else rather than to seek to establish, as he might well have done, that there had been no rape at all. And while the Supreme Court found that the conflicting forensic testimony Thompson presented at the evidentiary hearing on his first habeas petition was not in itself sufficient to meet the Schlup or Sawyer standards, the evidence of Thompson’s guilt was certainly not so clear that testimony as to what a direct eyewitness observed need not be considered or tested before a trier of fact. The majority bases its decision in part on its assertion that the evidence that Thompson raped Fleischli is “overwhelming.” ' That is simply not the case. All one need do is read Judge Fletcher’s en banc opinión of last August to discover that today’s characterization of the evidence is plainly incorrect. While the majority of the Supreme Court may have viewed the evidence as sufficiently strong to withstand, for purposes of a second or successive petition, an attack based on conflicting forensic evidence, we are by no means compelled by Calderon to misstate the quantum of evidence so egregiously. Nor, in my opinion, are we compelled to overlook the fact that the not-so-overwhelming evidence was adduced at a trial at which a constitutionally inadequate defense to the charge of rape was offered. Until now, there has been no witness— other than the not-so-credible defendant — • who could shed direct light on what actually occurred the night Ginger Fleischli was murdered. There was. no witness who acknowledged observing the sexual act that took place between Thompson and Fleischli. All that was available previously was circumstantial evidence and the substantially “discredited” testimony of the prosecution’s second set of jailhouse informants. Thompson now offers evidence that as early as 1982 Leitch had been reporting a version of events which, contrary to Leitch’s own interests, establishes his presence in the apartment before the murder took place and directly corroborates the crucial portion of Thompson’s trial testimony, namely, that the sexual act between Fleischli and Thompson was consensual. Thompson presents a declaration authorized ■ by Judge Ronald P. Kreber, who served as Leitch’s defense attorney at his 1985 trial and has since been appointed Presiding Judge of the South Orange County District by Governor Pete Wilson. Kreber states that before Leitch’s trial Leitch informed him that the night that Fleischli was murdered Leitch walked into the apartment he shared with Thompson and witnessed Thompson and Fleischli engaged in consensual intercourse. Thompson also presents convincing evidence that Leitch told this same version of events to law enforcement officials. A declaration by a defense investigator states that retired Orange County Sheriffs detective Floyd Owens acknowledged that he may have heard this from Leitch. Although the majority points out that in a later declaration obtained by the state Owens retracts the statement that Leitch was the direct source of this information, Owens continued to affirm that as early as 1982 he had been informed of Leitch’s version of events, and identified the Orange County District Attorney’s office as the most likely source of the informati