Thompson

CHIEF JUDGE HUG, JUDGE PREGERSON, JUDGE REINHARDT concurring; JUDGE BROWNING, JUDGE TASHIMA, JUDGE THOMAS concurring in parts I, II and IV, and in the judgment.

Thomas Martin Thompson’s execution is scheduled for August 5, 1997, for the rape and murder of Ginger Fleischli. We recall the mandate that issued on the March 6, 1997, amended opinion in Thompson v. Calderon, 109 F.3d 1358 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2426 , 138 L.Ed.2d 188 (1997), grant Thompson’s petition for a writ of habeas corpus in part, remand in part, and direct that the order scheduling his execution for August 5, 1997, be vacated.

On March 29, 1995, the district court granted in part Thompson’s first federal ha-beas petition. It found that Thompson’s trial counsel provided constitutionally deficient representation in failing to refute the rape evidence and in failing to impeach the testimony of a notoriously unreliable jailhouse informant. The district court ordered that Thompson receive a new trial on the rape conviction and the rape special circumstance finding and vacated his death sentence.

The panel reversed the district court’s grant of habeas relief. It concluded that although trial…

concurring:

I.

I concur wholeheartedly in Judge Fletcher’s opinion for the court. Regretfully, however, I cannot let Judge Kozinski’s extraordinary dissent pass unchallenged. Because we cannot delay filing any longer, I am able to comment on that unfortunate document only very briefly.

Perhaps to those who read his recent musings in The New Yorker magazine regarding his personal experiences in voting in death penalty cases, 1 Judge Kozinski’s rambling analysis will come as no surprise. Others surely will be astounded by some of the conclusions he reaches and some of the factual errors he makes. I have time to note only one of each:

First, Judge Kozinski’s conclusion that the en banc process is not available when the objective is to correct specific constitutional errors that will result in the execution of a person who cannot lawfully be executed misses the point not only of our en bane process but of our justice system as a whole. Of course our en bane process is available to correct such grievous and otherwise irremediable errors. Judge Kozinski writes:

This conclusion is bizarre and horrifying in its implications, and is unworthy of any jurist. We cannot correct the error…

with whom T.G. NELSON, and KLEINFELD, Circuit Judges join, dissenting:

We dissent from the majority’s unprecedented and arbitrary exercise of the court’s power to recall our mandate.

I.

By recalling the mandate, and reconsidering the merits of our original opinion, the court has encouraged and enabled Thompson’s attempt to end run the restrictions of the Antiterrorism and Effective Death Penalty Act (“the AEDPA”). The AEDPA requires that a habeas corpus petitioner base a second or successive application on a new rule of constitutional law or newly discovered facts that establish by clear and convincing evidence that no reasonable jury could have found guilt in the absence of constitutional error. 28 U.S.C. § 2244 (b)(2). It also requires that any claim already presented in a prior application must be dismissed. 28 U.S.C. § 2244 (b)(1). Finally, the petitioner must file an application making a prima facie showing that he meets these requirements and receive our permission before he can file a second petition. 28 U.S.C. § 2244 (b)(3). We have expressly forbidden the recall of our mandate simply to avoid these procedural bars. Nevius v. Sumner, 105 F.3d 453, 461-62 (9th Cir.1996).…

with whom Circuit Judge T.G. NELSON joins, dissenting.

I

I agree with this much of the majority’s claim that there are exceptional eireum- *1067 stances in this case: Not every day does a court of appeals recall the mandate in order to reconsider an argument that has already been presented to — and rejected by — the Supreme Court in a petition for a writ of certio-rari. So far as I know, this is a first anywhere, anytime. What happened here, then, to justify such an extraordinary departure from orderly procedure? The majority suggests that “our normal en banc process did not function in the intended manner.” Maj. op. at 1048. In fact, nothing at all unusual happened; the process operated just as it’s supposed to.

Here is how it all works: All suggestions for rehearing en banc, whether or not bundled with a petition for panel rehearing, are first considered by the panel that issued the opinion. See Circuit Advisory Committee Note (4) to Rules 35-1 to 35-3. A judge who has doubts about the panel’s opinion must await the panel’s action before calling for a vote on whether to take the case en banc, since the panel might solve the problem by amending the opinion. In order to be…

with whom T.G. NELSON, Circuit Judge, joins, dissenting:

I join fully in Judge Hall’s dissent. I write separately because I think it necessary to comment upon the merits of the case, in view of the reasons stated in majority opinion. I write with some trepidation, because the last-minute aspect of this proceeding prevents me from mastering the record. Though death penalty cases are typically litigated for more than a decade, as this one has been, we are always presented with critical decisions to make in a procedural context that prevents us from knowing the record as well as in routine cases. For this reason, Congress and the Supreme Court have rightly seen last-minuteness as an obstacle to truth and justice.

Thompson raped a twenty year old woman, Ginger Fleischli, and then stabbed her five times in the head. When one of his thrusts of his knife penetrated 2 1/2 inches through her ear, it killed her. Then he and his roommate, David Leitch, carefully wrapped her up and threw her body away. People v. Thompson, 45 Cal.3d 86 , 246 Cal.Rptr. 245 , 753 P.2d 37 (1988). The people of California have decided to implement a death penalty, and they have the right to do that under the…