Thompson

with whom HALL, BRUNETTI, TROTT and KLEINFELD, Circuit Judges, join dissenting:

A majority of the active judges of the court have authorized an en banc court to reconsider an order denying the motion to recall the mandate which issued from this court on June 11,1997.

We issued the mandate in compliance with Fed. R.App. P. 41(b) after the United States Supreme Court denied a petition for certiorari seeking review of the opinion in Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997). On July 22,1997, Thompson moved this court for an order recalling the mandate, asserting “newly discovered evidence confirming that petitioner had consensual intercourse with, and did not rape, Ginger Fleischli.” Thompson further asserted that this evidence was withheld by the state and undercuts our pri- or holding that there was no prejudical ineffective assistance of counsel. Thompson’s motion was denied by a panel order filed on July 28,1997.

The en banc court has not advised the parties whether the court intends to limit its reconsideration to the petitioner’s motion to recall the mandate, whether it intends to reconsider matters which the Supreme Court considered when it denied the petition for…

with whom KLEINFELD, Circuit Judge, joins dissenting:

The vote to take en banc the panel’s manifestly correct determination that the mandate in this case is not subject to recall amounts to seizing in our judicial mouths not only the bit, but also the rules, the due process, and our General Orders that govern our handling of appeals. As Judge Beezer correctly illustrates, we have lost our lawful authority over Thompson’s appeal. Hence, our power to reopen what has already been done no longer exists. Thus, I concur in Judge Beezer’s dissent.

Unlike the weather, we are sworn to adhere to the rules and to behave in a predictable and regular way. This requirement is the very essence of due process of law. Yet here, as the judicial equivalent of Edward Lorenz’s butterflies, we import the equivalent of chaos into our process and procedures, throwing normalcy to the wind. To borrow further from James Gleick’s book Chaos, somehow “nothing ever happen[s] the same way twice” in a case involving capital punishment.

In my view, there are reasons for the periodicity and unpredictability of our court in these kinds of cases, just as there is an eerie order in chaos itself, but suffice it to…

*1043 ORDER

A majority of the active judges has voted to take this matter en banc. On March 6, 1997, a panel of our court reversed the district court’s grant of habeas relief. An en banc vote was not taken before the mandate issued. The 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.

Oral argument will be held in San Francisco at the Seventh and Mission Courthouse on Friday, August 1, 1997, at 11:00 a.m. The parties should be prepared to discuss fully the merits of the appeal from the district court’s decision issuing the writ of habeas corpus, dated March 29, 1995, including the issues of ineffective assistance of counsel and prosecutorial misconduct. The parties may, at their option, file 20 copies of briefs of not more than 15 pages on or before 5:00 p.m., Thursday, July 31, 1997. No oral argument will be conducted regarding the appeal from the denial of the 60(b) motion.