Cooper

ORDER

The panel has voted to deny the Petition for Rehearing and Petition for Rehearing En Banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

dissenting from the denial of rehearing en banc, joined by PREGERSON, REINHARDT, THOMAS, and BERZON, Circuit Judges:

Public confidence in the proper administration of the death penalty depends on the integrity of the process followed by the state. See Furman v. Georgia, 408 U.S. 238, 299 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“[I]t is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out.”). So far as due process is concerned, twenty-four years of flawed proceedings are as good as no proceedings at all.

We authorized Kevin Cooper to file his second or successive habeas petition so that the district court could resolve the problem so ably articulated by Judge Silverman: “Cooper is either guilty as sin or he was framed by the police. There is no middle ground.” Cooper v. Woodford, 358 F.3d 1117, 1124 (9th Cir.2004) (en banc) (Silverman, J., concurring in part and dissenting in part). Instead, through a series of errors accurately described by Judge Fletcher in his dissent, the district court precluded Cooper from having his last…

dissenting from denial of rehearing en bane, joined by KOZINSKI, Chief Judge, PREGERSON, GRABER and BERZON, Circuit Judges:

I generally agree with Judge Fletcher that we should have taken this ease en banc to require the factual inquiry the previous en banc court expected to occur.

concurring:

I concur in the court’s order declining to rehear this case en banc. The panel opinion explains why we affirmed denial of the writ, Cooper v. Brown, 510 F.3d 870 (9th Cir.2007) (Cooper TV), so I write now only to highlight the main reasons I agree with the court’s decision and not the dissents from failure to take the case en banc. I take particular issue with Judge Fletcher’s dissent because:

1. The dissent improperly marshals the facts in the light most favorable to Kevin Cooper, yet the evidence was resolved against Cooper at trial — after he took the stand and testified — and at each step of post-conviction proceedings. The dissent also approaches the issues as if they were new, yet the same issues have been on the table since day one (except for DNA testing which didn’t exist at the time and which has turned out to be inculpatory). This includes Josh Ryen’s statements; handling the drop of blood A-41; the presence of three strangers at the Canyon Corral Bar; that three white men were seen driving on the road leading away from the Ryen house; Cooper’s tennis shoes and whether they were Pro-Keds Dudes or left the impressions made at the Lease house as well as at…

dissenting from denial of rehearing en banc, joined by PREGERSON, REINHARDT, PAEZ, and RAWLINSON, Circuit Judges:

The State of California may be about to execute an innocent man.

From the time of his initial arrest until today, Kevin Cooper has consistently maintained his innocence of the murders for which he has been convicted. Cooper was convicted of capital murder and sentenced to death by a California court in 1985. The California Supreme Court affirmed Cooper’s conviction and sentence in 1991. People v. Cooper, 53 Cal.3d 771 , 281 Cal.Rptr. 90 , 809 P.2d 865 (1991). The California Supreme Court denied Cooper’s state petition for habeas corpus in 1996. A three-judge panel of the Ninth Circuit affirmed the denial of Cooper’s first federal application for habeas corpus in 2001. Cooper v. Calderon, 255 F.3d 1104 (9th *582 Cir.2001). That decision was called en banc, but the call failed.

In 2004, on the eve of his scheduled execution, Cooper sought permission from the three-judge Ninth Circuit panel to file a second or successive application for federal habeas corpus under 28 U.S.C. § 2244 (b)(3)(A). Among other things, Cooper claimed that he had new and previously unavailable…

dissenting from the denial of rehearing en banc:

I concur in Judge Fletcher’s thorough and highly persuasive dissent, as well as in Judge Wardlaw’s pithy summary of the judicial failures that infect this case. I would add, however, that the failures are not solely those of the district court. Our own handling of the matter, some of which has been made public and some of which has not, leaves much to be desired, and is a cause of considerable regret. There is *636 no purpose, however, to looking backward at this point. What matters is that we have an obligation to afford Kevin Cooper a full and fair judicial hearing, and that once again we fail. By denying en banc review, we add to the prior systemic judicial malfunctions, and this time, we do so under a cloak of secrecy.

I have on numerous occasions urged that we disclose the names of judges who vote for and against rehearing cases en banc. Spears v. Stewart, 283 F.3d 992, 997 (9th Cir.2002) (Reinhardt, J., dissenting from denial of en banc review); In re Silicon Graphics Inc. Securities Litigation, 195 F.3d 521, 523-24 (9th Cir.1999) (Reinhardt, J., dissenting from denial of en banc review); United States v. Koon, 45 F.3d 1303,…

Before: PAMELA ANN RYMER, M. MARGARET McKEOWN, and RONALD M. GOULD, Circuit Judges.

Dissent by Judge WILLIAM A. FLETCHER; Dissent by Judge WARDLAW; Dissent by Judge FISHER; Dissent by Judge REINHARDT; Concurrence by Judge RYMER.

The panel has voted to deny the Petition for Rehearing and Petition for Rehearing En Banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

WILLIAM A. FLETCHER, Circuit Judge, dissenting from denial of rehearing en banc, joined by PREGERSON, REINHARDT, PAEZ, and RAWLINSON, Circuit Judges:

The State of California may be about to execute an innocent man.

From the time of his initial arrest until today, Kevin Cooper has consistently maintained his innocence of the murders for which he has been convicted. Cooper was convicted of capital murder and sentenced to death by a California court in 1985. The California Supreme Court affirmed Cooper's conviction and…