Thompson

ORDER

Petitioner, Thomas M. Thompson, by and through his attorneys, has filed an emergency motion under Circuit Rule 27-3 to recall the mandate and for a stay of execution. Our opinion in this appeal was filed on June 19, 1996, as amended March 6, 1997 and is reported at 109 F.3d 1358 (9th Cir.1996). A petition for certiorari was filed in the Supreme Court of the United States on behalf of the petitioner and the petition was denied. In compliance with Fed. R.App. P. 41(b), our mandate issued on June 11,1997.

The petitioner now asserts that there is “newly discovered evidence confirming that petitioner had consensual intercourse with, and did not rape, Ginger Fleischli.” Petitioner says that even if his newly discovered evidence is challenged by the state, the state withheld evidence from the petitioner and that the discovery of such evidence will materially affect our opinion with respect to “prejudicial ineffective assistance of counsel.”

When we consider the record on which our opinion was based, there is no record evidence before us with respect to claims which petitioner now makes in his petition to recall the mandate. These matters have never been considered by the…